Dáil Éireann debate -
Thursday, 9 Feb 2023

Vol. 1033 No. 2

Nursing Home Charges and Disability Allowance Payments: Statements

Minister for Health (Deputy Stephen Donnelly)

I would like to start today by addressing the verbal and physical attacks on healthcare workers that have been reported in recent days. That our staff have to endure such attacks while endeavouring to deliver care is intolerable and completely unacceptable. It is particularly invidious that some of these attacks are racist in nature. A strong message needs to go out from this House that everybody is welcome in Ireland, regardless of race, creed or ethnicity. People who come here from other countries are particularly welcome in our health service. More than two in every five doctors and nurses employed in the HSE were not trained in Ireland. Without them, we could not provide essential healthcare to our most vulnerable citizens.

I say to those who are perpetrating these vile attacks, the person you are attacking is the person you will rely on to treat those you love - your mother, father, son, or daughter - when they are at their most vulnerable. To every healthcare worker in Ireland who comes from another country I say, you are welcome in Ireland, you are valued in Ireland, and the work you do is essential and is appreciated. Thank you for all that you do every day for patients and their families.

I welcome the debate today. It is important that this House has the opportunity to discuss these matters which have been subject to public discussion recently. The Government takes seriously the issues raised about how the State has approached legal challenges taken against it. The Government moved quickly to establish the facts surrounding these issues, which go back many decades, by requesting the Attorney General to prepare a report on the litigation management strategy. This comprehensive report was produced within a week and was published on Tuesday to allow for a full and informed debate in the House today.

It is important to set out the background and context on both of the matters at hand. I will address the issue of nursing home charges first. Long-term residential care for older people in Ireland is provided by a mixture of public, private and voluntary providers. Up to 2009, when the nursing homes support scheme was introduced, separate arrangements existed for funding care in these different settings. People who were provided with publicly funded long-stay care in public facilities and in publicly contracted beds paid a contribution towards the cost of their maintenance through a charge. The majority of the cost was funded by the State through the health budget.

It is a matter of public record that until the mid-2000s the regulations underpinning these charges were not supported by primary legislation. This was the subject of an independent investigation by Mr. John Travers in late 2004, a Supreme Court ruling in early 2005 and much debate in the Oireachtas and in the media at the time. New legislation was enacted in 2005 to regularise these charges and a repayment scheme was introduced in 2006 for those on whom charges had been levied. More than €450 million was paid out under this scheme. The scope of the scheme was well publicised at the time and was limited to those who had full eligibility under the 1970 Act and who had paid charges as a contribution towards their publicly funded care.

The situation with private nursing homes was different. People entered into their own contractual arrangements with these homes and were responsible themselves for meeting the costs of the fees. This included people who were assessed as fully eligible under the 1970 Act and had a medical card. The State did provide financial assistance towards the cost of fees through a subvention scheme. The numbers receiving subvention grew over time, from 3,200 people in 1994 to more than 9,900 people in 2004. As per Government policy and as allocated by the Oireachtas, the level of State funding per bed was greater for publicly funded beds than it was for privately funded beds. This policy of funding public and private nursing home care differently was ended in 2008 via the nursing home support scheme.

Any eligibility under the 1970 Act was and continues to be subject to the availability of resources. This is the case with all health services provided by the State, given the finite nature of resources. It is not Government policy, nor does the State have an obligation, to use public moneys to pay for private care. For example, where medical card patients today avail of private health or social care services, the State is not obliged to cover those costs. Where private care is availed of, reimbursement may happen under a system of prior approval. This is the case, for example, with private care sourced by the National Treatment Purchase Fund and various initiatives under the waiting list action plan.

This brings me to the heart of the issues that have been raised. As the House will be aware, following the Supreme Court judgment in 2005, legal cases were taken against the State relating to claims that the State failed to provide nursing home care free of charge to those who had full eligibility under the 1970 Act. A total of 516 cases were initiated over the period 2005 to 2013, of which 289 were in respect of private nursing home care with a further 37 in respect of a mix of public and private care. The balance were in respect of public nursing home care with the majority of these cases resolved. Cases have been managed by the Department of Health case by case over the years in close consultation with the Office of the Attorney General. Underpinning the defence of these cases is the position that it was not the policy intent of Government or the Oireachtas for public moneys to be used in this way, and there was not an unqualified entitlement to private nursing home care provision or reimbursement for same.

The Attorney General's report provides an account of the litigation management strategy adopted by the State in relation to these cases. The report sets out that the legal advice furnished in respect of the litigation concerning charges levied for private nursing home care was sound, accurate and appropriate, with the conclusion that there is and was a bona fide legal defence to these cases. The report also sets out that the advice provided by the Office of the Attorney General and his predecessors offered a robust justification for the Department of Health to act in the manner it did, under the supervision of various Ministers over the years. The report also sets out that the Department acted prudently in settling claims involving care in private nursing homes rather than risking an adverse outcome in a test case, which could have provoked many more historic cases, with a substantial potential exposure for the taxpayer. The report also stated it is entirely right that the State should be able to adopt a strategy on how best to approach litigation, that it is able to form such a strategy under the protection of legal professional privilege, and that it is appropriate for the strategy to be confidential.

I will now address the second issue in relation to the disabled persons' maintenance allowance, DPMA. I am aware that, during the past fortnight, issues have been raised in the media relating to the eligibility of persons living in residential facilities to the disabled persons' maintenance allowance. These issues relate to an extended time period going back almost 70 years. The DPMA was established under section 50 of the Health Act 1953. It was replaced in October 1996, which is 26 years ago, by the disability allowance scheme under what is now the Department of Social Protection. The Minister, Deputy Humphreys, will be speaking further to this shortly. From 3 January 2007, entitlement to disability allowance was extended fully to all persons resident in institutions who otherwise met the conditions of the scheme.

Broadly speaking, the prevailing policy of Governments from the 1950s through to the end of the 20th century was that the State would provide for people with disabilities, either through in-kind support in a residential facility or through financial supports for people living in the community, but that it would not do both. This policy position was enshrined in the first regulations made in 1954 under the legislation under which the DPMA was established, namely, the Health Act 1953. It was repeated subsequently in regulations made under the Health Act 1970, which became the subsequent basis for the scheme. This position continued into the Social Welfare Act 1996, when the Department of Social Welfare, as it was known, took over the scheme and renamed it the disability allowance. This allocation of public moneys was approved by the Oireachtas through each budget. The prevailing policy remained unchanged when responsibility for the DPMA transferred from the Department of Health to the Department of Social Welfare in 1996. The Government's policy was further enshrined in the Social Welfare Act 1996, and the period during which a person could continue to receive disability allowance on entry to a residential facility was extended from eight to 13 weeks at this time.

The Commission on the Status of People with Disabilities in 1996 emphasised the principles of equal rights, autonomy and choice, and had criticised the exclusion of those in residential care from DPMA. The subsequent 1999 Social Welfare Act provided that those newly entering residential facilities would retain the disability allowance upon admission to long-term residential care. A 2003 interdepartmental working group recommended the repeal of the residential care ineligibility. Following that, and as an interim measure, the Social Welfare Act 2005 provided for a minimum payment of €35 a week to people living in long-term residential care. The residential care ineligibility of people living in long-term care from receipt of the disability allowance was abolished in 2007.

Policies in place today providing supports for people with disabilities are different from, and in many ways more progressive than, policies going back to the 1950s. The agency and independence of the individual is better supported, protected and respected. This includes direct financial supports, moving from congregated settings to community living, and provision of multidisciplinary health and social care services. That is not to say that an awful lot more progress is not needed; it certainly is. However, the progress that has been made is important and has made a substantial difference to those living with disabilities.

However, I would be the first to acknowledge that we have a long way to go as a State in getting to where we need to be in fully and properly supporting people with disabilities.

The approach to allowances is different now than it was during the period under discussion. However, it is clear from a thorough review by the Department of Health and the Attorney General that, from the 1950s to the 1990s, the policy was that the DPMA and, for its first few years, the disability allowance were to support those living in the community and, therefore, did not apply when a person moved into residential care. This was a transparent policy and the intent of governments was clear. It was funded on that basis each year by the Oireachtas over a period of more than 40 years. While we might debate the policy today - the State has moved away from it, and I fully support that move - there was undoubtedly a transparent Government policy in place for many decades and the Oireachtas allocated public moneys on that basis year after year. We began to change the policy during the 1990s, but even today we retain the principle that those in such care contribute towards its cost through the residential support services maintenance and accommodation contribution.

While there have been a small number of cases over the years in respect of the DPMA, it is clear that, no matter what weakness may have been found in the law or what mistake may have been made in drafting the legislation in 1953 or transposing it over the years, the intention of the Oireachtas was that those in residential care would not also be in receipt of the DPMA, which was clearly meant to support the costs of living in the community. As noted in the Attorney General's report, "there was a clear and logical distinction between the financial needs of those living in the community in their own homes and those living in a State-provided residential care environment".

We look at the world differently today compared with those who sat here in the 1950s or 1970s. Even in my time in the House, we have as an Oireachtas brought in sweeping reforms to how we treat people who are often marginalised by virtue of their gender, sexuality, socioeconomic status or disabilities. We know that work is a long way from being finished.

The report from the Attorney General provides us with a comprehensive account of these issues. While we must look to the past, we must also remain committed to the present and the future. The specialist community-based disability budget will amount to approximately €2.6 billion this year. Building on the previous year, this is an unprecedented level of funding for disability services. It will give people with disabilities greater choice, independence and, quite rightly, control over their lives and empower them to participate in their local communities.

Our overall investment in older person's services will be more than €2.4 billion this year. That includes nearly €12 million for new services. Older people who wish to continue living in their homes for as long as possible are helped and supported through community services, daycare, meals on wheels, home care etc. Those who require long-term residential care will continue to be supported through the nursing homes support scheme.

I look forward to listening to the contributions from colleagues during this debate.

Minister for Social Protection (Deputy Heather Humphreys)

Given the complex historical basis of the DPMA and the disability allowance, I welcome the opportunity to set out the context of this matter for the House.

Over the full period of some 70 years, there have been different allowances and legislative provisions governing these schemes and it is important that they be understood clearly. For more than 40 years, the DPMA constituted a weekly allowance paid by health boards to persons who were unable to work by reason of a disability. The scheme was first introduced under the Health Act 1953 and remained under the responsibility of the Minister for Health, the health boards and, subsequently, the HSE for more than 40 years. Responsibility for the allowance's payment and administration transferred to what is now the Department of Social Protection in 1996. At that point, the DPMA was discontinued and replaced by the disability allowance. The introduction and nature of the disability allowance was provided for in primary legislation at the time.

I should clarify that the legal concerns around the operation of this payment primarily relate to the period before the scheme transferred to the Department of Social Protection. Subsequent to the scheme's transfer, there were a series of improvements that led to the gradual expansion of entitlement to persons in residential care settings. For example, the Social Welfare Act 1999 provided for the retention of entitlement to the disability allowance where a person who had been living at home subsequently entered residential care. Additionally, the disability allowance personal expense rate was provided for in the Social Welfare and Pensions Act 2005 and was payable at an amount of €35 per week. This payment replaced and standardised the spending allowances that had been paid by the health boards to people in residential care who were excluded from the disability allowance due to being in residential care. This move meant that all persons in residential care could apply for the payment. It represented a decisive step towards the provision, through legislation in 2007, of a full-rate disability allowance for all people in residential care settings who met the scheme's other qualifying criteria. This series of gradual improvements in entitlement was advanced across several budgets that had, of necessity, a regard for a range of competing priorities at those times.

Given the timespan over which the restrictions on payment to persons in residential care were progressively relaxed, these issues are historical. They relate to arrangements that have been superseded for many years. Furthermore, the legislative basis for the allowances and their payment changed a number of times during that timespan, adding to the matter's complexity. As a result of these complexities, and in response to public concerns, the Government asked the Attorney General to review the files in the Attorney General's office relating to charges levied for the provision of nursing home care and the non-payment of the DPMA to persons in residential care, and to provide an account of the litigation management strategy adopted by the State insofar as it was based upon the legal advices provided by previous Attorneys General and the Office of the Attorney General. My colleague, the Minister for Health, has spoken to the matters relating to the nursing homes aspect.

The Attorney General's report was received this week. The Government has noted it and it has been laid before the Houses and published. The report analyses the nature of the State's approach to civil litigation and provides an explanation of the litigation process. Around the time of the more significant expansions of entitlement in the 2006 to 2008 period, a legal challenge was made to the validity of regulations made under the Health Act 1970 in respect of the 1983 to 1996 period. The Attorney General did not consider it appropriate to name individual plaintiffs in circumstances where their litigation was compromised in a manner to their satisfaction on a confidential basis. Likewise, I do not propose to do so. I understand that the challenge sought to establish a right to the payment of the DPMA to people in residential care settings in a manner that was neither in line with the long-standing and well-understood Government policy of the time nor with the legislative intent of the Oireachtas, as expressed in the Social Welfare Act 1996. These details are set out in the report of the Attorney General. However, rather than contesting the claim, the State decided to compromise the case for reasons also set out in the Attorney General's report. In the view of the Attorney General, this was a legitimate legal approach that did not, as some have portrayed, attempt to force the person concerned through the courts and instead led to the State reaching an agreed settlement with that individual.

The settlement was not secret. It was reported in the press at the time, was ruled on by the High Court and was subsequently the subject of a parliamentary question.

The question that has been raised in recent public discourse is whether the settlement of this case automatically means all people who potentially could have made a similar claim were denied an entitlement and should now receive a similar settlement. The view of the Attorney General is that, even if the case concerned had been contested in court and even if the regulations concerned were determined to be invalid, it does not follow that there would have been an obligation to compensate people who may have benefited from a payment in the absence of the regulations that specifically excluded them. The Attorney General's report sets out that the State had no positive obligation to provide redress in the cases concerned. There are many documents to consider, dating back over a 50-year period, and that is why it is important adequate time is given to consider the issues at hand. My colleague, the Minister for Health, and I have been asked to review these matters and respond to the Government within three months.

However, it is important we do not provide mixed messages on this and that people with disabilities can be assured of this Government's ongoing support. In budget 2023, a number of important supports were brought forward for people with disabilities, including a cost-of-living double payment, a €500 cost-of-living disability support grant, a Christmas bonus double payment that was paid in December, and a €12 increase in weekly payments with proportionate increases for qualified adults. Domiciliary care allowance was increased by €20.50 to €330 per month and has been made available for children with a severe illness or disability who remain in hospital for up to six months after birth. The earnings disregards for both the disability allowance and blind pension were increased by €25 per week, from €140 to €165. These measures build on a range of supports provided in successive budgets, such as improvement to the wage subsidy scheme to facilitate the employment of persons with disabilities; publication of a cost of disability report; the introduction of legislation, known as Catherine's law, to facilitate further education for people with disabilities; and the extension of the invalidity pension to self-employed contributors. I assure the House that the Government remains committed to and ambitious in its support for people with disabilities.

I look forward to hearing the contributions.

Deputy David Cullinane

I am sharing time with my colleagues. I welcome the two Ministers. In the past two weeks, we learned that Fianna Fáil and Fine Gael Ministers knew that tens of thousands of families with medical cards had been wrongfully charged for nursing home care to which they were entitled. That includes up to 9,000 people in long-term residential disability services who were charged so-called voluntary contributions. It includes potentially tens of thousands more families who were forced to fork out for private nursing home care because the Government of the day had refused to put in place any scheme to cover their costs.

Fianna Fáil Ministers for health, including the current Tánaiste, Deputy Martin, denied any responsibility for their care despite clear legal advice to the contrary, as covered in the Ombudsman's reports in 2001 and 2010, in the Travers report in 2005, and in the various secret memos which set out the Government’s denial strategy. By the way, none of those memos has been published. None of the memos given to any Minister for Health from 2009 onwards has yet been published by the Government, and that must be said clearly here today.

Initially, the Taoiseach, Deputy Varadkar, claimed he knew nothing about this strategy. Then he admitted he was briefed on the strategy and it is now the position of the Government that it was a good strategy. The first injustice is that these families were ripped off in the first instance. The second injustice is the heartless political strategy put in place by successive Fianna Fáil and Fine Gael Governments. It is the same strategy deployed against survivors of historical institutional abuse and of historical negligence in CervicalCheck, and against those affected by the issues of sodium valproate, thalidomide and mother and baby homes. It is a strategy that allows compensation only for the better off while denying the most vulnerable access to justice.

The strategy was to stop cases from going to court, to delay, divide and conquer, to wage a war of attrition, to hope they go away, and if they did not, to pay them off and keep others in the dark. The Government’s heartless and cynical political strategy to deny citizens their rights and then to deny them any redress or compensation is set out plainly in the recently disclosed secret 2011 memo on the management of long-stay and related litigation. The memo states "the strategy is that, in general, these proceedings should be fully defended and that a strong case should be identified which can then be fought as a test case”. No strong case ever emerged. No test case was ever heard. The memo goes on to state:

Confidentiality has been a central element of the legal strategy. The fear is that if details of the cases, the legal strategy and settlements were to gain a high public profile, it would spark a large number of claims.

A 2017 briefing note for the Ministers, Deputies Harris and McEntee, said, "It remains important to manage historic long-stay litigation with extreme care, discretion, and confidentiality due to the very substantial level of liability to which the State could potentially be exposed following an adverse outcome." The note further states:

Confidentiality has been a central element of the legal strategy. The risk is that if details of the cases, the legal strategy, or settlements were to emerge, there is the potential for a significant increase in private cases in particular and for an upward creep in the percentage at which cases can be settled.

The deployment of this strategy is evidenced in the Conroy case, in which Joseph Conroy, who made his story public in the Sunday Independent at the weekend, pursued a refund of €120,000 spent on private nursing home care for his mother, who had a medical card. Mr Conroy acknowledges that he was one of the lucky few who could afford this care and who could afford to pursue the Department for many years to the point of pushing the Government to settle on the court steps. In an email regarding the Conroy case, an official at the Department of Health wrote to the Chief State Solicitor's office stating:

I [can] confirm that, having failed in our attempts to negotiate a settlement ahead of last Tuesday and having considered our legal advices, we had no realistic option other than to consent to a discovery order in the terms arising from the Shallow/McKenzie discovery ruling(s) and that there is no change in the Department’s policy position – informed by legal advices to date from the Office of the Attorney General and ... Ministers Harris & McEntee – that discovery should be avoided in all long-stay cases, including the Conroy case.

Discovery should be avoided in all cases - not some, not a few, but in all cases - taken by the State. So much for the argument the State believed in its legal position. It goes on to say, "The reality of making discovery or running a hearing in one of these cases continues to be too risky to be seriously contemplated, and, whether we like it or not, settling the Conroy case – if necessary on terms we may find somewhat unpalatable – appears to be the only way forward." Mr. Conroy took a case. He went as far as he could, got to discovery and the State said it must settle even on terms unpalatable because it did not want to open the floodgates. That is what happened.

This demonstrates beyond doubt that the Government knew and knows that it had a responsibility to cover this care in potentially tens of thousands of cases. It lays bare in tangible terms that the Government’s strategy was to avoid handing over damaging documents or engaging in a public trial which might tip off other families that they had been fleeced. The instruction from the Minister, Deputy Harris, and from every Minister before him for 50 years, was to settle all cases at any cost. At no point did a single Minister, including today, stand up and say this was wrong, that we had a moral and ethical duty to address this. Instead of a proactive effort to identify wrongdoing and compensate victims of Government heartlessness, an active effort was made to suppress claims, gaslight victims and deny compensation to those who deserved it.

The fact is that the health boards of the time were deciding whether people were going into public or private nursing homes depending on available capacity and in the absence of enough public beds.

It was not that families were making choices to go private; health boards were actively putting people into private nursing homes because it was the only option open to families. The families who were entitled to free public care where the capacity was not available had no choice but to go into a private home. Health boards facilitated that due to the fact they had no choice because the Government had not put public capacity in place in the first place. This is clear from the Attorney General’s report.

In some cases, the health boards paid subventions and in other cases they did not, but in all cases of medical card holders placed in private nursing homes and charged for that care, the health boards were acting outside or beyond the law. They advised the Department of this, but the Department said to continue anyway. That was a political choice.

Through no fault of their own, families ended up using private homes due to the political failures of Government. The consequences for many were devastating. The Ombudsman’s 2010 report lays out these consequences and any Minister who thinks this is a good, ethical strategy or just strategy should read it. It highlights the following cases:

Her mother is in a private nursing home. It costs £20 a day, £600 a month. The mother’s widow’s pension of £400 does not cover this and her daughter pays the rest. Her husband is on £62 invalidity pension. She is on £45.80 Disability Benefit. Their 17 year old son has left school. Of their income, they have to meet the shortfall of £50 per week. Whatever happens, they will starve themselves rather than move the mother.

My wife, Mary, is in a nursing home which costs £130 a week. I am in receipt of a pension of £93 a week. I asked the Community Welfare Officer for help with this, and they got the nursing home section ... to increase the grant to the nursing home to £65 per week. That means I also have to pay £65 a week, leaving me with only £28 to live on.

He says that after pay the nursing home fees of £170 a week, he has only £35 per week to live on. Whatever savings they had are being gradually eroded and he feels they will not have sufficient [funds] to bury themselves.

That is a small sample of those who made complaints to the Ombudsman at the time. The human consequences of this heartless strategy was laid bare.

When it came to redress, those in public homes were included, but families put into private homes by the health boards and ripped off were left high and dry despite their hardship being a direct result of the Government’s political choices. The Government, in the Attorney General’s report, says that it could have acted legally. This serves to highlight the very point that the Government acted illegally.

The Attorney General goes on to state that there were clear and bona fide legal defences available to the State, but these were never tested in court. In 2016, a briefing note states that, “there is no obvious lead case, and therefore settling, for the best possible economic value, is the most appropriate course of action". If the Government was so confident in its legal defence, why was it so afraid of taking cases to the courts? Why was it afraid of the Conroy case going to discovery? Why was it so afraid of details of these claims and cases coming out? Why would utmost secrecy be so essential if the Government was confident and had good faith defences which would hold up in court? The answer is clear; it is because the Government’s position was and is still wrong. It could not find a single case that it could fight and win. The Government settled the Conroy case, and hundreds like it, as well as several hundred cases related to long-term residential disability services, even where it found the settlement amounts unpalatable because, "the reality of making discovery or running a hearing in one of these cases continues to be too risky” as it would expose the Government’s heartless political strategy.

Regarding people in long-term residential disability services, the 2011 memo estimates a potential liability of some €360 million. The memo outlines how the Government sought to deny any repayment to these families, numbering up to 9,000, who had been wrongfully charged for long-term residential disability services.

Many thousands did not apply to the health repayment scheme, as the Government intended, on the basis that they were not included in the definition of a public home. That was a deliberate strategy to exclude them from redress. Some 515 cases were put on behalf of residents with disabilities in the care of St. Michael’s House, Cheeverstown House and the Daughters of Charity. Three test appeals were considered by the scheme’s appeals officer, and the memo notes there are 512 similar appeals.

The Government, rather than righting these wrongs, sought instead to challenge the ruling of its own appeals officer. However, it did not in the end because, as the memo notes, "the Department has received advice from Senior Counsel on these cases, which suggests that the State is likely to have difficulty successfully proceeding with these appeals". Over the following years, some €20 million was paid out to these appeal cases in settlements, as disclosed in the HSE’s financial statements.

However, the issue for the Ministers here today is the other 8,500 who may, and indeed did, have an entitlement to redress, but had either not applied on the advice of Government that they were ineligible or did not appeal on the basis of that same advice. They have been left high and dry.

These were residents with moderate to profound disabilities whose families were wrongfully charged for their care, and were on the receiving end of the Government of the day's cold and heartless political strategy which first denied them of their rights, then made them pay for it and then, despite knowing they were likely entitled to compensation, decided to keep them in the dark. These numbers were not picked from the air. When the Department estimated the liability at the time, that was based on real people. The figures are clearly calculated on the basis of records held by the Department and HSE which demonstrate that such a value of fees was wrongfully charged and taken from families, older people and people with disabilities. To this day, the Ministers are not prepared to admit in the Chamber that was a mistake.

Some families and those homes which appealed the decision were paid, but those who did not were left to suffer in silence. There was more secrecy and people were not told the truth. Subsequent settlements valued in the tens of thousands clearly give the lie to the notion that Government was not responsible for the costs of their care. We do not need to look any farther than the Conroy case, which demonstrates beyond doubt that the Government knew it was responsible in many more cases than it admitted.

It has also emerged that up to 12,000 people with disabilities living in residential care had their disability allowance payments illegally taken from them. The Government has now recognised that this was wrong. The Taoiseach, Deputy Varadkar, said last week that the Government had no legal leg to stand on. Yet, according to the Government this week, while it may have been unlawful to stop the payments it has no legal obligation to pay them back. That is perhaps the most sickening element of these scandals and demonstrates the callousness with which this Government acts. We take money from people that we should not be taking from them, and we know we are acting outside the law but will do everything possible not to pay them back. When that was happening, no end of money was found to set up NAMA, to bail out developers or to put into the banks. Tens of billions of euro could be found. We hear from Government about finite resources, but there were no finite resources when it came to bailing out the banks.

However, when it came to people with disabilities and vulnerable people in nursing homes, a strategy was developed to keep people in the dark and not pay them. That goes to the heart of the callousness of this Government. Despite a clear moral and ethical duty to pay these families back, the Government considers that it has no legal obligation to do so, and if the families want their money back they will need to spend thousands to pursue matters through the courts.

For far too long, Governments have taken an aggressive and combative approach to those who have been wronged by the State. From the treatment of Brigid McCole, who was dragged through the courts in her final months, to Vicky Phelan and the brave CervicalCheck victims who stood up to attempts to bully them into silence, Louise O’Keeffe and victims of institutional abuse, Thalidomide survivors, families affected by sodium valproate and many more, they were all wronged by the State. It was an absolute disgrace that in the Minister's opening statement there was no apology or acceptance of wrongdoing. The Minister doubled down and that is absolutely shameful.

Deputy Imelda Munster

What is the purpose or responsibility of any Government worth its salt? It is to look after all of its citizens, including the elderly and vulnerable, and to ensure fairness and that people get their rights and entitlements. Again again, successive Fianna Fáil and Fine Gael Governments have failed the people.

The report from the Attorney General published on Tuesday divides the citizens concerned into two convenient groups, those in public and private nursing homes. However, the report makes no reference to our most vulnerable citizens, that is, those in long-term residential disability care settings. Many of those people depended on the Government of the day to advocate on their behalf and not to deny them their rights. There are three groups of people with disabilities potentially entitled to payments, but only one was paid. The first group comprises those who never applied to the scheme because they were advised not to. The second group comprises those who did apply but who were told by a deciding officer they were not entitled to repayment under the scheme and, because of that, did not appeal the decision.

The final group comprises the minority of people who did appeal and ultimately were the only ones to receive what was due to them. They were the ones who were fortunate enough to have an organisation that advocated on their behalf and remained persistent to the end despite barriers put in place by the Government. To not similarly compensate over 8,500 people with disabilities in similar long-term care settings whose entitlements should have been similar but who had nobody advocating on their behalf and to actively work to deny them their entitlements must be the lowest of the low for any Government. Despite Government protestations, it is clear that thousands of patients were unfairly charged for their care, Government after Government and Minister after Minister were happy to keep the public in the dark about this scandal and the Government tried its utmost to deny redress to those thousands of patients.

Now that the Government's policy has been exposed, what steps has it taken to identify those 8,500 people who had money taken from them illegally? If it has started a trawl, although there is no confirmation of this, it is only because it has been exposed. Now the Government has been found out, is it going to continue its policy of protestations and denials? If a person was to take a case today on the same basis as the cases settled, would the Government defend or settle that case? That is the question.

A couple of times, I heard Ministers refer to this as historical. However, there is a scandal that happens day in and day out, yesterday, today and tomorrow. This is the scandal of charging patients in nursing homes who have medical cards for products to which they are entitled free of charge on their medical cards. They are charged for incontinence wear, ointments, wound dressings and occupational therapy and speech therapy, all entitlements they would have free of charge were they living in the community. I have raised this issue numerous times with the HSE and the Department at the Committee of Public Accounts but the HSE could not give a damn about it. In a document I received under freedom of information legislation, the assistant national director for primary care reimbursement service said the primary place where an intervention could be put in to ensure that nursing home clients are not charged for items that would be covered under the medical cards scheme would be via inserting a clause in the document between the HSE and nursing homes that actually states the requirement not to charge. Despite the fact that this statement is two years old and it was raised with the Secretary General of the Department last week, the HSE has still done nothing. This is happening today. Patients with medical cards who are in nursing homes are being ripped off and are not getting their full entitlements. Will the Minister put a stop to that because the HSE could not give a damn?

Deputy Seán Crowe

We have a terrible history in this State of treating people who have been let down by the failures of Government as opponents, enemies or costly and troublesome problems. Whether it was those who were unfairly charged in nursing homes, those whose lives were destroyed by the hepatitis C bad blood scandal in the 1980s or the small number still alive who suffered the lifelong birth effects of thalidomide, Governments consciously planned strategies and schemes to see that they were not treated fairly or given the answers and justice they sought.

While there may be an onus on Government to protect the coffers and act in the interests of the State, there is a tendency to forget that the State is also made up of those vulnerable citizens who have been failed and left with no option to go to the courts to seek redress and compensation. Is it too much for us to ask as legislators that the Government also acts in the best interests of those who have been so badly wronged?

I ask for full co-operation from all those who were in positions of authority and power in the decision-making process to deny fair redress to work with the Oireachtas Committee on Health or the Committee of Public Accounts in their investigations. While the Government may claim that this wrong is "historical", it replicates a pattern of denial and smoke-screen tactics whenever cases like this arise. This behaviour is unacceptable and misguided.

There must be a fundamental shift in how we view the damage that can be done to people's lives by cold and cruel decisions that deny legitimate claims by victims and their families. We must not fight survivors like the survivors of the hepatitis C debacle or the women who were failed by CervicalCheck. We must not hide the truth away, compound hurt and have it dragged out piece by piece. Where wrongs have been done by Government, they must be corrected and where damage has been caused, there must be redress. I do not think anyone could disagree with anything I have said. The approach of Government is wrong. It has been wrong in the past and from the statements we have heard today, we have not learned any lessons from those awful times.

Deputy Duncan Smith

Since the report in the Mail on Sunday on 29 January 2023, we have seen the report of the Attorney General, which was utterly disappointing, and have heard the statements from the Ministers this afternoon that ricocheted off the central injustices that have been exposed rather than grappling with and accepting them and detailing a path we need to travel.

In the report last Sunday week, it was revealed that successive Ministers of Health employed and maintained a secret legal strategy to block or minimise compensation to older persons and their families who were or who might have been illegally charged for nursing home care.

The issue has never been tested in court. The lack of a test case is because the State's aggressive legal strategy made sure that no case could ever get to a full court hearing. As the 2010 Ombudsman's report suspected and as the Government's information note last week confirmed, cases were settled before discovery, that is, the publication of documents, to avoid encouraging more cases to be taken.

A central part of the injustice is that it was clear that people who had the resources - personal capacity, money, agency or links - to challenge the fees had them quietly dropped whereas other people without the same personal capacity, money or links and who may have been in the same nursing home or even the same room continued to be charged, sometimes for years and sometimes with major consequences for families such as being forced to sell homes, farms, businesses or other assets.

As the Ombudsman's 2010 report found, many people over these decades have been deprived of their legal entitlement and access to nursing home care over this period was marked by confusion, uncertainty, misinformation, inconsistency and inequity. The Ombudsman was deeply concerned about what the issue suggested about how adequately officials were briefing their Ministers and the whole nature of the Executive-legislative relationship.

While the 2009 nursing homes support or fair deal scheme put in place a new fees regime for nursing home care, it did not address the fundamental inequalities and injustices that occurred from 1970. The issue is not just that people were or might have been illegally charged for nursing home care but that the illegality was known for decades and health officials just kept on going. Now we discover that there was an aggressive legal strategy to frustrate access to justice for those affected.

On the question of medical cards, the Travers report notes that those with a medical card were not required to pay inpatient service charges but institutional assistance charges were payable. Those who were not fully eligible, that is, not in possession of a medical card, were liable to pay both. The Travers report makes it clear that the 1976 circular from the Department of Health tried to work around the law rather than amend it. That circular instructed officials to remove medical cards from people in long-term care, thus depriving them of the criteria that would make them fully eligible for free-of-charge care. This ignored the fundamental illegality of the charging regime. For example, in respect of section 3.2, it stated that a central feature of the legal concerns has been that the use of secondary legislation in the form of a ministerial regulation as a means of setting aside a substantive provision of primary legislation is ultra vires. It is not clear that the 2006 health repayment scheme included all relevant cases. The view was that the terms of reference for that repayment scheme were very narrowly written to minimise the numbers of who could apply for compensation.

The information note about the legal strategy suggests awareness that a much larger cohort of people could be eligible for compensation. About 20,000 people were compensated through the 2006 scheme, whereas potentially 250,000-plus were affected by fees since 1970. The 2006 scheme also had a cut-off point of 1988, with people charged before that date not included, yet there is no explanation as to why this is the case.

A complicating factor about medical card holders being entitled to free-of-charge care in public beds is that the State had public beds in public facilities, that the State publicly funded beds in voluntary, not-for-profit private nursing homes, and that the State had publicly funded contract beds in private, for-profit nursing homes, potentially in the same building as non-public private beds. Were all these types of bed included in the 2006 scheme?

Another gap in our knowledge relates to the detail of the subvention scheme that existed prior to 2009. Part of this appears to have involved means-testing the wider family of people in nursing homes, with adult children asked to contribute to costs. This seems like an extraordinary overreach in that it involved means-testing a person's children before giving him or her a subvention. These are things we still do not know about this scheme and the lack of publication of documents relating to this since the matter returned to the public consciousness last Sunday week is a great cause for concern.

The Labour Party supports Age Action's call for the appointment of a commissioner for ageing and older persons as a matter of urgency to strengthen the institutions of the State that are independent of the Government in order that such scandals as those we are discussing cannot happen again. There are already commissioners in Northern Ireland and Wales with proven track records of service to older persons.

The Attorney General's report was deeply disappointing. It seeks to conflate the interests of the Government with the interests of the State by, for example, invoking the taxpayer as a “client” of the Attorney General. It places undue and inaccurate emphasis on Government policy rather than legislation as the basis for spending decisions. It is quite simply wrong to state that "In the ordinary course, expenditure on social protection and health is a matter for Government." It would be more accurate to insist that where legal entitlements have been spelled out in health and social welfare Acts, the Government must seek the funds to meet that expenditure or else seek to have those Acts amended. There is no other policy option.

The report confirms that legal professional privilege has not been waived by the Government, so the Attorney General cannot provide any details of the advice provided. While more or less conceding in the report that medical card holders should not have been charged for their stay in public nursing homes, the Attorney General maintains there is a viable legal defence when it comes to private nursing home residents, but he seems to be demolishing an argument that no one has made. He states, "At no stage did the Oireachtas ever legislate (in the 1970 Act or otherwise) to make the provision of private nursing home care free to all persons in nursing homes of their own choice."

No one has ever argued that, however. What is being argued is that if the State fails in its statutory obligation to provide a public placement and instead places someone in a private nursing home, the individual resident should not be out of pocket. This argument is not recognised or addressed in the report and that is a fundamental failing. It is nowhere explained why, if the State had a bona fide and viable defence, it was prudent to settle so many cases, with not one of them proceeding to a court hearing. Quite simply, this lacks any credibility.

We would like to see full transparency, with all documentation to be published, to get to the root of the matter and determine why issues such as this occur again and again. As the recent revelations show, the State approaches litigation in a manner that is indistinguishable from that of any faceless private, corporate entity. It is a war of attrition against those who dare to sue it. There must be a change in approach. There is a clear and compelling case for splitting the Office of the Attorney General in two to separate the task of defending the interests of Departments from that of representing and defending the public interest. The Attorney General is not in the same position as a commercial law firm. Defence strategies for litigation against the State have to be prepared with a proper consideration of the public interest. This must be a watershed moment in Irish politics. We must make the necessary changes to prevent vulnerable people from being let down by the system. The most effective way to reprioritise the public interest over cost containment is to empower the Office of the Attorney General to draft strategies to defend the public interest just as doggedly as it currently pursues the narrower interests of Departments.

Aggressive legal strategies designed to quash, suppress or minimise an entitlement or eligibility for any citizen is something no government should stand over, whether that is the current Government, any previous Governments including those in which my party has been involved or, indeed, any future government. In the case of the disability allowance payments, for which it was a direct action not to trawl through State records to see who would be entitled to redress or justice, this too is an action over which any State body or Government cannot stand and as such, no Government past or present can stand over it either.

True transparency and openness in public life is tested by issues such as this. Accordingly, whistleblower legislation and freedom of information legislation, which we brought in, are good, but exposing the mistakes and bad decisions of the past is not enough in and of itself. We need a path to make up for these mistakes and this is an opportunity to do that. It is not enough that, when something like this is raised, as it has been over recent weeks, the Government would list out other areas where it has addressed an historical injustice and put in place a redress scheme or whatever the case may be. It is with each new case that we need to ensure we address that injustice and put something in place.

We still need to see documents and we need the matter to go to the Joint Committee on Health or the Committee of Public Accounts and to be discussed further in the Dáil. This Thursday-afternoon debate cannot be the end of the matter. This should be a watershed moment. While the Government and the State should be entitled to defend themselves against vexatious or nuisance claims, when it comes to real issues where the State's legislation is flawed, failed or weak, the State needs to be open and transparent and act in the interests of the individual, not in the narrow interests of its own Department.

Deputy Fergus O'Dowd

This is a very important debate on which we must seize the opportunity to bring about change. The way older people are treated in our society is not great and has disimproved, not least as a result of what happened with Covid. We still await the announcement of the inquiry into the deaths of all those people, the majority of whom were aged over 65, who died of Covid, mostly in our nursing homes. A total of 37% of those deaths were deemed to be excess deaths, that is, deaths of people who would otherwise not have passed away. There is something wrong with the way we treat older people in our society and with the way they are cared for.

At the heart of this debate is a denial of an entitlement to care in a public nursing home, whereby persons who had that right had to go to a private nursing home to get their care, which they had to pay for. That is what happened. It was wrong and it should not have happened, but it did. The Government has to address that wrong, and I would support a proper and appropriate analysis over the next three months, which the Government is looking for, to ensure the correct decisions are now made.

A family were told to bring an umbrella as their relative died behind a glass window in a nursing home. Nine members of the family stood outside that window and saw their loved one pass away while nobody inside went to help that dying person. Twenty-three people died in Dealgan House nursing home, as the Minister well knows, given he met the families, but yet he has not yet agreed to a special inquiry into deaths in that home and other homes about which he has been notified. He has a lot of work to do, and I must say, I was not particularly impressed with what he said in his opening remarks.

This is an opportunity for the Minister to do what he said he would do and what I said I would do in supporting the Government in respect of the programme for Government. He needs to follow up on those commitments, one of which relates to keeping people out of nursing homes in the first instance. He needs to follow up on the home care system, which will keep people in their homes, looked after and cared for by people who are qualified and appropriately paid. It is time for him to appoint a commissioner for ageing, something Age Action Ireland is fighting for but which he has not conceded.

We need to fight ageism in our society because it is rampant, in this House and in other places. It can be seen in the way older people are treated in many places in our society. An independent commissioner would be in a position to vindicate the rights of older people, which nobody right now is doing. We need to vindicate the rights of older people in regard to housing, living in place, transport needs and dealing with illegal nursing home charges, which other Members mentioned and which the Government committed to removing for people who currently are being forced to pay them.

The Department of Health is doing nothing about that. A commissioner for ageing could look at commissioning independent research. It could look at the rights of older people over 65 years; advocate for older people; mediate in disputes; and do the research that is needed.

When will the Minister give more powers to HIQA to investigate individual complaints? Nursing home reports are full of references to complaints made by individuals which HIQA cannot follow up. Who is looking after these older people in cases where they are being abused? Who is vindicating their rights? It is time for the Minister to do that. It is not acceptable that the present situation can continue.

Dementia care is a huge issue. It is something everyone in society is aware of. We have hugely important community resources dedicated to looking after people with dementia. I would like to see a lot more of them and many more supports going into them. The housing adaptation grant is there to help people live in place. It is an annual allocation made through the Department of Housing, Local Government and Heritage. It is not always spent. The Minister needs to look again at the housing adaptation grant and to increase it exponentially and ensure that people who need their homes adjusted are able to live in place.

At the heart of all this is pressure on families and especially on older people. People have gone to court. The Attorney General has made a very fine professional argument but it does not matter how many lawyers, politicians or Ministers make arguments in fine and well-versed language. That does not get away from the fact we are not doing enough to help older people. There is an opportunity now to plan for transformational change in the coming three months and transform the services which exist for older people.

I want to speak up for those people who have had to go to court to fight for their legal right to take the challenges that had to be taken because the HSE, in the case I am aware of, will not vindicate their rights until forced to do so. On historic challenges, I will speak about a man - I will use his first name which was David - who died about nine years ago. He died in a ward in Cherry Orchard Hospital in appalling, shameful circumstances. He had a disability. It was not immediately before his death but during his care there that he was tied to a toilet and was found covered in his own faeces. He could not move. He was treated appallingly by some staff there. The recommendation from the HSE when it closed the AIDS unit he was in was that he would go to a special centre that care for people with the illness that he actually had. The HSE did not do that. It said it would not do that - we have the reference to that - but that he would be looked after in a ward for older people. That was totally inappropriate and wrong. He was treated appallingly. The family fought and I fought along with them. We had meetings with CEOs, acting heads and God knows who. Eventually, we got the HSE to agree that a doctor would carry out an inquiry. Unfortunately, the doctor had to resile from that work in the course of his investigations. Then they could not get any doctor in the whole of Ireland to look at this case for some strange reason. They were going to Scotland to get someone to do the inquiry but then got a private company of specialists in Ireland to carry out the inquiry into how David died. That inquiry vindicated what the family was saying. It vindicated in full that he was abused, that all his needs were not being met and that what happened to him was wrong. However, the HSE was not happy with that and it sought a further independent inquiry from the United Kingdom. That took place and it absolutely vindicated the family which had to go to litigation to fight for their rights. At the end of the day, there was a court case which took years. It was historic in that sense. This was because a person was abused. The family fought for their rights and they were put through hell to get there. Thankfully, the family has closure in that respect.

There are many problems outstanding in our nursing homes. Our bigger nursing homes are taking over. Smaller ones are closing. We have a duty to try to keep the smaller ones open. Many of the smaller ones are closing because they are in old buildings and they are fire hazards. I am talking about smaller homes of usually under 30 beds. If it is possible to keep them open the State could give them a low-interest rate loan to do the repairs or improvements that are needed. There could be co-operation between a number of smaller homes in different counties in the purchase of equipment and the provision of services. Many excellent staff in smaller nursing homes are leaving to go to bigger nursing homes. The reason is they get more pay and a bigger challenge. Were there to be some sort of involvement by the HSE, where it would appoint specialist people who would work in the public sector and provide services specifically to the smaller nursing homes, it would make a huge difference in keeping these homes open.

This Government has done many good things. The budget, in particular, improved the pension for older people, which is very welcome. The extension of the free fuel scheme to those under and over 70 years will benefit more than 80,000 people. Many good things have been done but much more needs to be done. In the coming three months, I suggest this is a key point to deliver on the promises that have been made.

When he concludes, I ask the Minister to update the House on how he will deal with the Covid inquiry. Will he agree to meet the Dealgan House residents again to update them? He is well aware of their situation. Will he comment on the issue of keeping smaller homes open, which is hugely important?

There are different figures for the money owed to these people, of between around €8 billion to €12 billion or whatever. Many of these people have passed, sadly, and are not with us. At this stage, I would like to see very significant investment and improvements in services for older people and to see us use the money wisely to fulfil the promises which the Minister made. We can work with Age Action Ireland, ALONE and other services to put implement the promises made but which need to be delivered. I understand the Minister's care commission may not commence until at least next year but that is too late. People want the commission of care now. They also want to see the promised improvements in the care of older people now.

The ombudsman for older people is the person who will vindicate the rights of all older citizens into the future. I ask the Minister to consider that as part of this package and make an immediate start on that. There is an ombudsman for older people in Wales and Northern Ireland and I understand the annual budget is €2 million. That is not a lot of money and it would make a huge difference in vindicating rights.

Deputy Róisín Shortall

I want to echo the sentiments, which the Minister expressed before he started into this debate, on the many thousands of people who come here from abroad to work in our health service.

We depend on these people to keep our health service running. It is shocking that they or any of their countrypeople are subjected to racial abuse in this country. As the Minister did, I thank them for their contribution and apologise on behalf of those elements who have targeted essential people who come to our country. The Minister’s comments were welcome but he needs to establish a public awareness campaign. That was made clear to us by all the health unions which came to the health committee yesterday. I hope the Minister picks up on that.

The Minister said in his opening comments that this comprehensive report was produced very quickly and allows a full and informed debate in the House today. I do not accept that for a moment. This is not a comprehensive report. This is a report requested of the Attorney General. The Government asked him, as he pointed out in the report. In relation of the two issues before us, he was asked to provide an account of the litigation management strategy adopted by the State, insofar as it was based on the legal advices. That is all. That is a particularly narrow, though important, focus. The issues before us are much wider than that, encompassing people’s rights, what we are as a society and what the Government is as a political organisation which has to take a much broader view than what is legally possible or advisable. We cannot have a fully informed debate unless we get into those broader issues. This is not about what is legally advised, but what is right and fair. That seems to have been lost in this. Successive Ministers through many years are hiding behind the legal strategy. That strategy can be defended and, viewed through a narrow lens, can be seen as legitimate. However, the job of Government is not solely to be mindful of the legal strategy advised. It is to take a broader view of people’s rights and what it means to be a properly inclusive society. That is being missed in all of this.

I question the role of the Attorney General in this. It would have been more appropriate and informative to bring somebody else in - somebody of the standing of John Travers, for example. He did a report in the 2000s that took that broader view. That is what we need. It would refer to the legal strategy and the management of it, but also take a broader view. It was a mistake to confine this to the Attorney General. He has a strict constitutional role, which is to "be the advisor of the Government in matters of law and legal opinion". That is the extent of it. It is the job of Government to decide what is most appropriate in terms of providing services for the public and what creates a properly functioning society. That wider issue is not covered, unfortunately.

The relationship between a client and lawyer is underpinned by the principle that lawyers advise but clients decide. Irrespective of the legal advice the Attorney General provides, it is the job of the Government and of politicians to take the advice on board and decide on the broader range of issues that need to be taken into consideration. It has been suggested to me that in a normal lawyer-client relationship the client asks if he or she can do such and such a thing, but when it comes to Government, the question should be “Should we do that? Is it right to do that? That may be the legal advice, but should we be doing that?” It seems that was not really asked. Taking that broader view is what politics is about and should be what good Government is about. It is the job of Government to defend the rights and entitlements of this country’s citizens, not to ride roughshod over them in the interests of financial expediency. That seems to have been the approach taken by successive governments and Ministers in purely following the strict legal advice.

I have many concerns about the Attorney General’s report. The tone of it is not particularly helpful. It is quite condescending. It is almost as though he is saying grown-ups in government have to make tough decisions which the general public could never understand. Then there is the language it uses and the insistence that it is all about protecting the taxpayer. Taxpayers are also people with disabilities, older people and people with family members who need the care of the State. Financial constraints are one aspect but there are other issues that should be taken into consideration. He also sets up a straw man when he says:

It is sometimes tempting to resort to generic stereotypes about the State being in some way cruel or unfair to its citizens where they are deprived of a benefit and bring legal proceedings challenging this deprivation. But the irresistible logic of such a perspective is that the State has unlimited resources, must concede every court case that is brought against it, and must fund every claim for compensation or redress that is demanded of it.

That is a straw man. Nobody is claiming that for one moment but we are looking for Government to balance protection of the public purse with vindicating the rights of weaker citizens.

There have been a number of enlightening responses to the Attorney General’s report. I was most struck by Máiréad Enright of the University of Birmingham, who wrote in The Journal yesterday. She made the point that “the State is a peculiar type of defendant because it is the plaintiff’s protector as well as her opponent; her opponent because it is defending itself against her claim, and her protector because it has duties to guarantee her fundamental rights.” That broader view was not taken into consideration.

I was also struck by the Disability Federation of Ireland’s point that it is deeply discouraging that the report took such a narrow view, with no mention of reflection on the United Nations Convention on the Rights of Persons with Disabilities, UNCRPD. That refers to what happened in relation to the disability payments. It makes no mention of the UNCRPD or Ireland’s responsibilities as a signatory to that important international human rights convention. A blinkered view was taken. It is one thing for the Attorney General to take such a view, but it is an entirely different matter for Government to take it.

I absolutely endorse Age Action’s call for an independent commissioner for ageing.

I return to a point I made last week when I raised this with the Taoiseach. Running through all this is the absence of a legal entitlement to healthcare. This has been at the root of many of these problems. There is no such entitlement to healthcare, while there is one to social welfare, for example. We use the vague term “eligibility”. People are eligible for services but, in many cases, those services do not exist. Given a situation where there is no underlying right to most healthcare services and the direction of travel of this and previous governments has been towards the increasing privatisation of services, the window of opportunity for public patients to access public services is getting narrower and narrower.

Will the Minister apply his mind to the need for a legal entitlement to healthcare? I do not know why he has three months to consider this further. That sounds very much like kicking the can down the road.

Before the Minister comes back to us again on this issue, will he please concentrate on the need to introduce a legally based right to public healthcare?

Deputy Brian Stanley

At the outset, we have a calamity regarding public nursing homes, private nursing homes, section 38 and 39 nursing homes and another calamity regarding disabled persons' maintenance allowance, DPMA. Despite the fact that while it has been acknowledged by Government representatives that the State does not have a leg to stand on as regards the DPMA, for example, there needs to be an acknowledgement of that and an apology given to those people who were affected by it.

The scale of this is massive, unfortunately. This has been left to fester for years without being addressed properly. I ask the Minister to address one thing when he gets the opportunity to speak. At a meeting of the Committee of Public Accounts in September 2011, there was an issue around liability, or potential liability, being put at €1 billion. I estimate that if €22,600 has been paid out per claimant to date in those cases that were successful, which was the average cost, that would indicate a cost of €1.58 billion, which is substantially higher than the estimated €1 billion. However, there is a key issue around the fact that it was not and has not been included in the HSE's financial statement. This was raised nearly 12 years ago at a meeting of the Committee of Public Accounts. The Comptroller and Auditor General at the time said that there was really nothing to add, that the policy had been set by the Minister and that the accounts were framed on the basis of the Minister's direction and accounting policies. The Minister might reply as to whether he has given such direction regarding the policy on that. It would be important to know that.

The charges have impacted severely on people who are on low incomes. I received a call last week from a constituent I will call "Mary", although that is not her correct name. "Mary" told me that her father was in a public nursing home during this period and for the years he was there, her mother would send her across with an envelope. Her first child had been born and "Mary" would push her child across in the buggy with an envelope given to her by her mother. Her mother would draw the pension every Friday morning, put money in an envelope and seal it - "Mary" never knew how much was in it - and ask her to bring it over to the nursing unit in the hospital where her father was being cared for. She was to give it to the nun in charge, who would take the money. As far as "Mary" can recollect, a receipt was never given. However, she informed me that this went on for a number of years. I have heard similar stories but that is one I will share with the Minister.

There are a number of questions around the Department's handling of this. Will the Department now inform former residents of public nursing homes and people who were there in the relevant period whether they are entitled to compensation, where compensation has been granted already in those cases? We need to know the number of cases settled with regard to private nursing homes and the value of those settlements.

The Minister might address the likely number of people whose cases have not been addressed in respect of the DPMA, and the situation regarding people in private nursing homes, regardless of whether they have a medical card or in the event they are directed to a private nursing home. That gives them the same entitlement, in fairness, as anybody in a public nursing home with a medical card. That needs to be established and those people need to be treated the exact same. It would be helpful if the Government and Department of Health outlined what they expect in terms of an influx of cases regarding what has happened in the last fortnight and the information that is now in the public domain. That needs to be crystal clear. We as an Oireachtas need accountability on this. We need to see what the potential liability is. These matters need to be addressed. We cannot have people who for one reason or another did not have the resources or wherewithal to claim to be at a loss while people who took a case had it settled out of court because the State did not want it to go to court in a public forum where this would all come out in the open. That is not good enough.

An Ceann Comhairle

I thank Deputy Stanley very much. Deputy McGuinness is sharing time with Deputy Dillon.

Deputy John McGuinness

We should understand that the reason we are here today is because of Mr. Shane Corr and the articles in the Daily Mail, which carried banner headlines about rights delayed, justice denied, revelations, memos and the whole lot; front-page stuff.

If we want to understand this, we only need to go back to contribution made by the then Tánaiste and Minister for Health and Children, Mary Harney, to the Seanad in March 2005 when she set out the history of this issue and referred to the High Court decision that was upheld by the Supreme Court. She said that: "At the time the regulations were introduced, the Department issued a circular to the health boards effectively telling them that they could move people away from full eligibility by taking away their medical cards."

That is just outrageous. It does not shock me anymore because I have seen this tactic in play in many different Departments. However, when we see it set out in black and white, dating back to 2005, we begin to understand that there is, indeed, a strategy here; there is a practice being followed. That practice, essentially, is to defend the State at all costs, whether it is right or wrong, and down the citizen, or ensure the muscle of the State wins over a person or group taking an action.

The former Minister went on to say that "by removing the medical cards, they became ... [people of] limited eligibility and could be charged." She continued that with regard to "the High Court and Supreme Court decisions, the then legal adviser of the Department of Health, as it then was, stated it was not possible to amend primary legislation by regulation, which is significant."

The Eastern Health Board brought forward the legal advice it had received, which stated:

The difficulties being experienced in levying charges on persons for long-stay care in health board institutions 'arises from the failure of the legislature to deal with the question of charges for maintenance ... in a clear and unambiguous fashion when the 1970 legislation was being passed'.

Basically, it went on from there with people knowing it was a problem and yet the Department did not address it. As this went on, and the Department sought advice but did not do anything about it, we come to the famous meeting in the Gresham Hotel. The Gresham grandees at that particular meeting were advised because Mary Harney in her report to the Seanad said that advice had been distributed. The Travers report referred to the accountability necessary by both the administrators of State - the bureaucracy - and Minister for Health. Travers went on to state:

I did not exclude the politicians from responsibility for these matters, I said that the politicians should have probed more deeply over the years and I include the former Minister, Deputy Martin, in this. This probing was not done.

It was dysfunctional within the Department. The normal, standard procedures were not followed. The result was that people were deprived of their rights and that a strategy was put in place as to what was needed to be done.

This is not new to me. We have seen it elsewhere, for example, in the case of Shane Corr who is now making all these revelations in the media. Is now the time to invite Mr. Corr in, in the response to all of his letters to the Minister, to talk to him in detail about what has yet to come? Mr. Corr has said there is more to come. We need to know what that "more" is.

Is it not time to look back on the issues within the Department? The thalidomide issue has been mentioned. It is yet unresolved but the Department continues to spend millions of euro on legal advice to fight off those thalidomide victims who are left, in trying to ensure that time will take care of things. That is a shocking policy or strategy to be employed by the State.

In the Grace case there was a similar Thursday debate here and we said that we would return to that issue because of what it revealed and yet nothing has happened. We continue to wait for the final outcome of the Farrelly commission report, but in the meantime the legal eagles and officials in the HSE are undermining the board of the agency in Waterford that was at the centre of this. The board members are trying to do the right thing. They are lay persons and over this coming weekend they are considering whether they should resign altogether or not from that. These are decent people making an effort to do the right thing but they are being confronted by the HSE and its legal arm to ensure they move things on away from the HSE and on to some other issue.

Let us consider the Vicky Phelan case and the bravery of that woman in not signing a confidentiality agreement and for coming out to deal with the issues openly and honestly. She too revealed a State that was continually trying to undermine the citizen, the person who was wronged by these strategies. It is there for everyone to see and the Minister seems to deny it in here. It now seems also to be denied by the Government. That is wrong. The first duty of a government is to keep its people safe. We are not keeping our people safe. We are exposing them to all sorts of litigation challenges just to protect the interests of a few within government that are attempting to keep a secret, and we are colluding with senior officials and politicians to keep that secret of so many years, while at the same time dealing an awful hand to those seeking justice and truth and to those who want to address an issue that should be addressed without all of these legal costs that are involved. This is all while the State hides behind this Attorney General's report.

This issue is not about that report. This controversy is about what was not done by Ministers. I have never seen as many of the Gresham grandees run for cover. If there was an Olympic gold medal then each one of them would get one. They run for cover and pretend they did not hear it. They do not address it. It is a case of if you do not hear it you do not know about it. It was not true because Mary Harney stated in her contribution to the Seanad that, in fact, they all knew. Someone has to call a halt to all of this and restore the rights and dignity to people who are trying to get justice for themselves. I agree with Deputy O'Dowd's comments earlier that in spite of all the positive things we may have done for older people, they are the very cohort of people in society that are feeling the pinch of everything the hardest. It is unfair, it is unjust and I put it to the Minister that it is not good politics. It is not good politics to come in and attempt to defend the indefensible. Tell the truth and shame the devil.

Deputy Alan Dillon

I thank the Minister for Health, Deputy Donnelly, for the opportunity to speak on this issue, which has raised some really complex matters. The debate refers to people who really require access to care. They are some of the most vulnerable people in our society. My main concern is that these issues have been ongoing since first reported by the Office of the Attorney General in 2004. The high cost of nursing home care was highlighted at the time along with the lack of transparency in the pricing and payment systems. It also highlights the significant difference between the costs of different nursing homes with some charging significantly more than others for the same types of services. As a result of legal action taken at that time, public nursing home charges were stopped and funds could not be reclaimed until the President refused to sign the new legislation. At that stage a redress scheme was put in place for the repayment of public nursing home charges. The report at that time noted there were difficulties for older persons in securing funding for their care, with many having to sell their homes or use personal assets for their care. Where was the Department of Health in terms of its duty to our citizens?

Despite the introduction of a number of measures, including the fair deal scheme, many nursing homes continue to be criticised for the lack of transparency when it comes to their fees and charges. Some families are reporting that they were unable to get the full extent of the costs until it was too late. Issues remain with the pricing framework, which is based on guidelines, including for the variation in the costs of care and services between different nursing homes. This needs to be addressed. Concerns continue to be raised about the quality care in nursing homes and the question of increased regulation of the industry to ensure residents receive high-quality care. This needs to be investigated further. Staffing levels also continue to be an area of focus in nursing homes when it comes to the provision of adequate care in this area. For example, are we introducing minimum staffing levels to ensure residents receive proper care?

Issues were also raised within the Attorney General's report that highlight the need for increased oversight and regulation in nursing homes, as well as increased transparency and accountability in billing practice. The report also highlights the need for greater transparency for our elderly and families in the context of care homes, and especially those families who have limited financial resources.

The impact of Covid-19 has been particularly difficult for older people and recent reports have demonstrated this. It has been very challenging for those who live on their own and those who reside in nursing homes. Learning from this, the Government needs to assess how we care for older people and examine alternatives to meet the diverse needs of our older citizens. I ask that we would move swiftly with the establishment of the commission to examine care and supports for elderly people to ensure that this is not delayed any further and to continue to demonstrate our seriousness about protecting our most vulnerable people.

Deputy Pauline Tully

The practice of successive governments from the 1970s to the 1990s was to deny disability payments to those in institutional care. Many of these people would have had profound disabilities and were relying on the State to care for them and advocate on their behalf. Instead of advocating for them the strategy of the Governments during this period, and by subsequent Governments, was to suppress advice coming to Cabinet that if those disabled people sued the State for payments their cases were likely to succeed. This affected thousands of people in up to 140 institutional care homes. It has been estimated that this affected between 4,000 and 10,000 people during the time the payment was made by the Department of Health, and affected another 2,700 people after the Department of Social and Family Affairs, as it was known, took over the payments.

As shocking as they are, these revelations should not come as too big a surprise when we consider the other scandals involving successive governments down through the years where they have tried to deny people their rights by concealing information and settling on the steps of the courts.

I am thinking of those affected by thalidomide, sodium valproate, the CervicalCheck scandal, the mother and baby homes redress scheme, and of course, now, in respect of the nursing home fees. We need full disclosure and openness from the Government and from those who were in positions of power in respect of the Government’s heartless political strategy to withhold disability payments from those in residential care who were entitled to it and the subsequent concealment of that strategy by successive governments since. This must involve full co-operation and transparency from Government, including the acceptance of any requests from committees for Ministers to address the matter.

The current Attorney General has concluded that the State had no positive legal duty to make retrospective payments on the disabled person’s maintenance allowance. This simply begs the question as to why the cases brought against the State were settled. The Minister of State, Deputy Richmond, in response to a question I raised on this issue yesterday, quoted from the Attorney General’s report, "It is sometimes tempting to resort to generic stereotypes about the State being in some way cruel or unfair to its citizens where they are deprived of a benefit and bring legal proceedings challenging this deprivation." The Minister of State went on to quote "the ... logic of such a perspective is that the State has unlimited resources, must concede every Court case that is brought against it, and must fund every claim for compensation or redress that is demanded of it". This misses the point or, more importantly, tries to deflect from it. Of course it is the case that not all challenges against the State are well founded and that the State has a right to defend itself against a legal challenge, and of course the State should protect the taxpayer. However, the advice coming to the Cabinet was that if those disabled people sued the State for payments, their cases were likely to succeed. If this had been a case of challenges which were unfounded, when the State had the opportunity to defend its decision, it decided to settle these cases at the court steps.

As for protecting the taxpayer, it seems this is only of interest to the Government when it refers to vulnerable people. The State did not fight the church in court to get it to pay for all of the abuse it inflicted on children. It has not fought those who supplied faulty cement blocks or the builders of substandard apartments. In essence, what this and previous governments have done is to pay out to those with power and means, even if they are not primarily culpable, while denying payment to the weak, even when this obligation is utterly undeniable.

Once again I reiterate what is needed is full disclosure and openness from Government and from those who were in positions of power in respect of this heartless political strategy from the Government which withheld disability payments from those in residential care who were entitled to it and the subsequent concealment of the strategy by successive governments since. This must involve full co-operation and transparency from the Government, including the acceptance of any request from committees for Ministers to address the matter.

The Minister for Health and the Minister for Social Protection, Deputy Humphreys, will review this, will look at all of the documentation and will come back to the House within three months. I hope they will be guided by the UN Convention on the Rights of Persons with Disabilities, UNCRPD, to ensure the review is based on the rights of people with disabilities. We should not need a convention to tell us how disabled citizens are treated or should be treated. It is because of actions just like this by successive governments that we need a convention. Article 28 of the UNCRPD reads "States parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right". There are other rights in the convention that guarantee legal capacity, a right to information and justice for persons with disabilities. All of those things have been denied to the people in this case but the Ministers have an opportunity now to correct the mistakes of the past and I ask them to please do that.

Deputy Gino Kenny

I want to set out that this is no doubt quite a complicated issue, spans four or five decades and is somewhat opaque as to the interpretation of the care that should be given to our citizens. In this case we are talking about long-stay nursing home care. The central tenet to the critique the Attorney General has set out, and I and others would argue this point, is that those who had an obligation to receive care were subjected to an imposition of charges with regard to that care. That is, as I say, open to interpretation.

Some families went to court and others did not and that was in respect of the resources of those families. There is no doubt that families went through very significant financial hardship in respect of those decades that have passed. It was policy to bring families through the courts and so be it. The report of the Attorney General, which I read this morning, and I do not generally read documents of that nature, says the Government’s position stands up legally, but I do not believe it stands up morally, where families were denied care that should be given to them.

There has been a strategy by successive governments and by the Department of Health to counter litigation, and that could have a very detrimental effect on those families trying to seek justice and redress on this issue. Families were short-changed; of that there is no doubt. Also, however, in the public interest and in the public realm, society was also short-changed in respect of this entire issue, to say the least. Successive governments and Ministers have put compensation and redress at arm’s length, of which there is no doubt also. Looking at this objectively, families who should have been given this care and redress were made sweat and compensation was very difficult to obtain.

We have seen wrongs in the State in how people were brought through the courts. To say the justice was arbitrary is an understatement. Were families let down? It is indisputable that they were. Whatever the Attorney General says, whatever successive Ministers have said, and whatever the Government says at the moment, families were let down in their time of need. When these families needed that help in respect of care, which is a simple obligation of the State, they were made pay both financially and in hardship terms. There are still a great number of questions in respect of this issue and families deserve those answers, not just over the next three months but over the lifetime of this Government.

Deputy Bríd Smith

I cannot help but say that sometimes I have to pinch myself and ask if I am in a Parliament where there are Government and Opposition benches, because I have listened to have a dozen or so speeches from Government party Deputies in both Fianna Fáil and Fine Gael lashing out of it the Minister for Health and previous Ministers and governments for this scandal. They are still, however, members of the parties responsible for it. They are still in Fine Gael and Fianna Fáil, even though they are condemning the behaviour of Ministers and of previous parties for upholding what was done to people in nursing homes and people with disabilities or in long-term care. It is a scandal and will be remembered by the population. I suspect the reason these Deputies are so strong in their condemnation is because they understand that the older persons are the ones who vote. The grey vote is important to them and they do not want to lose it in their constituencies. It is a hypocrisy and the least they could do is to have a backbenchers’ revolt against the report of the Attorney General-----

Deputy Bernard J. Durkan

No.

Deputy Bríd Smith

-----to ensure this is changed and that something happens. That is the very least that they could do.

Máiréad Enright said something very clear in her article in The Journal, that "the State is a peculiar ... defendant because it is the plaintiff’s protector as well as ... [the] opponent". That should mean the State must behave as a model litigant in cases against ordinary citizens but it has not. It has been said by all of the Deputies here that it has been a David and Goliath story where the State has taken on the most vulnerable, the weakest, the poorest, the sickest and the ones without the intellectual or physical ability to be able to challenge the State on an equal par.

This is definitely the David and Goliath story of the century as far as the State is concerned, which has been repeated in other cases.

I will reference what the Disability Federation of Ireland, DFI, stated:

The line taken by the State to stop the disability maintenance payment on admission to long-term care and the subsequent legal approach and lack of State action to address the discrepancy is particularly distressing when the people affected were often living with significant disability and not in a position to advocate for themselves.

[...]

DFI is now calling for:

The identification of ... [the 12,000 or so who are] impacted through the planned review.  ... this number ... [can] be confirmed ... [through] historical records.

[A] Trust [needs] to be established ... [through] this process and ... undertaken in a transparent and timely way with appropriate communication ... [to] those [who are] impacted [and their families].

An examination of ... [this] issue ... handled in the intervening years [has been inadequate].

A process of statutory repayment [needs to be put in place].

Deputy Tully came up with a great idea. Let the State pursue those who manufactured defective blocks, and who gave us more than 100,000 apartments and homes and the mica scandal in County Donegal. The Government should pursue them and get the cash it is so preciously minding on behalf of the taxpayer back into the coffers of the State so it can look after people with disabilities and people too old and sick to defend themselves in nursing homes. Let the State pursue the religious orders and the church, which have underpaid by a huge amount their alleged, supposed and requested contribution to the redress scheme for historical abuse cases. That is a brilliant idea. If the State did that, it would prove itself not to be a Goliath but that it is trying to treat equally all people and all the children of the nation who live in this State.

However, that is not going to happen. The Minister and I, and everybody else in the House, know it will not happen. Instead, the Attorney General, in the most class-biased report of any from the State, made not just a legal but political defence of the legacy we are talking about. He said the State litigation strategy it had to have to protect the State coffers is not sinister or abnormal in any way. If a secret litigation strategy was used against vulnerable and poor people, and it is not abnormal, then it must be normal. If it is normal, then that is a huge class bias fault on the part of the State against the people who dwell in this country. The Attorney General went on to say: "Any suggestion that a "secret litigation strategy" ... is in some way improper betrays significant unfamiliarity with the civil litigation process". Of course it does. I am a Deputy but I am not familiar with the civil litigation process. How is somebody with an intellectual or physical disability, or with Alzheimer's or dementia who is living in a nursing home, meant to be familiar with the civil litigation process?

The State has gone beyond what it tries to do in these instances. When the Taoiseach said we did not have a legal leg to stand on, he was absolutely right. When questioned, the Government says the State had a responsibility to do what is right but it also had to protect the taxpayer and a balance had to be struck between the past and the future. The balance has not been struck. I hope the Government will fall over on both legs in losing its balance because what it has done here is outrageous, as is the fact it is standing over it. I hope those grey voters and others bring the chickens home to roost and put it out of office.

Deputy Bernard J. Durkan

I am someone who participated in and lived through that era. It is appropriate someone of that vintage should make some comment. I was a member of a health board during that entire period. I was also a Government backbencher during quite a lot of that period. I remember it well. I have no difficulty at all in recollecting it and the way things happened. It is now being presented as a strategy to deprive people; it was not. It was a policy to attempt to accommodate people who had no hope of getting accommodation and had no accommodation available to them anywhere. As long as public hospitals, with spaces, were available in places such as Naas, Athy and so on and so forth, with a need for more, those hospitals were able to accommodate those patients for as long as was necessary. A number of other places, such as Peamount Hospital, did the same thing.

Deputy Bríd Smith

The litigation was the strategy.

Deputy Bernard J. Durkan

I did not interrupt Deputy Smith at all. I ask her to listen. I am just recalling the situation as it was. It was policy; it was not a strategy. It was Government policy-----

Deputy Bríd Smith

Nobody said it was a strategy.

Deputy Bernard J. Durkan

-----although it should have been reviewed. It may be that it could or could not be reviewed but the situation always applied. I understand why the Opposition sees this as an opportunity to scourge members of the Government as being in some way responsible for concocting this out of their evil minds. We can then look back and claim against everybody. The whole country will eventually end up claiming for something that should have been done at the time for want of there being a policy in place to deal with it.

What then happened was the excess accommodation required was dealt with by the health boards by way of applying for beds in private nursing homes. Only the overspill was then transferred to the private sector in a way that would meet accommodation requirements. It was not always sufficient but it was an attempt to deal with a situation that was running out of control. We can say otherwise in retrospect but it should not be forgotten that retrospection applies to everything that any government did in any case. We need to realise that. In that situation, we were not the richest country in the world as we claim to be now. We are still not but we certainly were not at that stage. An attempt was made to accommodate people and a charge was applied by the health boards for nursing homes. The reason for that was there were complaints from members of the public who said that some people were making a profit off the situation that was in operation. I do not know whether they were but all we could do at that particular time was try to accommodate people's needs as they were at that stage, where they might not have had anybody to look after them.

When a situation arose where nobody was around to look after the family, something had to be done. A charge was then thought of, similar to the old age pension, or part or three quarters of it or whatever, in return for which pocket money was given to patients at the time. As the Ceann Comhairle will recall, we objected to that at the time. It seemed punitive but there was no other way of getting the accommodation at that time. We were between a rock and a hard place. I am not accepting responsibility for one moment for Government policy because, at that stage, I was a backbencher almost all of the time. However, I was a member of the health board and subject to its policy.

Deputy Bríd Smith

And a member of Fine Gael.

An Ceann Comhairle

Please, Deputy.

Deputy Bernard J. Durkan

I ask the loquacious people in the Opposition to please consider that we all have a right to speak. It would be nice if we could silence everybody who had an opposing view but I believe in the democratic way. It is the oldest and still the best way.

We then went on to a situation whereby, as the problem got bigger, there was a necessity to increase the charge. Otherwise, the system would have collapsed and we would not have been in a position to supply any service. By "we" I mean the people whose board I sat on - the health board - and the Government backbenchers. I do not mind accepting full responsibility for those things but we have to view them in the light of circumstances prevailing at that time and not in light of current circumstances, which are totally and absolutely different.

Members of the Opposition will continue to say the Government does not know what it is talking about. Maybe they are right but that could apply to everybody in the House. Maybe they are also right and maybe they are not. The fact remains that we have the right to speak.

We arrived at the situation - Sinn Féin introduced this first - where there was a campaign, not so much on the need for but the fairness of having a charge for accommodation. It transpired there was no legislation to enable the charges to be made. That is fair enough but it did not previously stop charges from being made.

The legislation was produced and it was then possible to charge but what nobody has spoken about, the Opposition or anyone else, is that the alternative system was far more costly. The fair deal scheme was introduced in more recent times to try to accommodate the situation arising. It does no harm to remember. Situations like this will always be used by the Opposition, whatever its hue, to blame the Government of the day and previous Governments. If, however, we have arrived at a situation whereby in future we will examine our conscience and decide to address retrospectively every injustice that has been done, there will be a lot of time spent on that, and we better realise that.

In another Department, I had responsibility for a different situation. You could, for example, qualify for a contributory old age pension if you had in excess of 21 years' contributions. Therefore, if you had 19 years' contributions you got no pension. If you had 21 years' contributions you got 98% of the pension. I thought that was unfair. I believe I was right and I was in a position to do something about it. Specifically, I was a Minister of State in that Department and I said I wanted to do something about it, having tabled countless questions about it in the House. I had all the information on cost. I remember well that the first information I got was that it would cost £700 million, a lot of money at that time, to change it. There were not too many people ponying up or making offers to concede in order to provide for the £700 million. I tried that for a couple of years. It did not work and I had no success. Then I did my own review, in my own country way, as we do down in the country, as you will know, a Cheann Comhairle, and I came up with a different assessment of the cost. I came up with an assessment that was not £700 million or £800 million but a simple £14 million. I had erred on the conservative side because, in fact, it was costing only £9 million. I am not saying I was right or wrong, but we changed the system at the time for £9 million. We did so because we were able to explain that the situation was such that the people would gain and society would gain as a result of the decision to deal with it now and to introduce a pro rata pension in order that if you had 70% of the contributions, you got 70% of the pension. Try it in any court of law you want; it will stand up. If you had 50% of the contributions, you got 50% of the pension. There were those who said at the time that 50% was no good. It is a lot better than nothing, and that is a fact. That still stands.

I say this by way of illustration of the circumstances that prevailed during the times with which everybody else is now familiar, and we have to recall them, but that is the situation we were in at that time. We do not claim any responsibility for doing what was deemed to be the right thing to do, and we probably would not have got any credit for it, but the fact of the matter is that things like that happen every day to every Government of every hue.

The Attorney General, to my mind, is right. We have to have the moral consideration on the one hand and, on the other, the recognition of the factual situation in respect of two things: the setting of a precedent and the cost. Those things have to be borne in mind always in government. If a Minister, a Deputy or anybody else wishes to go beyond that, and if the question is then raised as to how satisfactorily they intend to deal with the situation when it arises, they are always asked, if setting a precedent, whether they are happy to be blamed for that precedent. If they set a bad precedent, how will that fit? If they spend money in a way that is not as it should be, the examination of which is a role for the Comptroller and Auditor General, who seems to have a view on these things as well, there are repercussions. We had better realise that this situation is very sensitive, very important and genuine. Hardships were caused as a result of decisions taken at that time but when we resolve them we want to resolve them in such a way that will stand up.

The last point I will make is about a different subject, about which I have heard several times in the House. I do not understand why the Opposition has raised it. I refer to the question of the wrongdoings relating to the mother and baby homes and the church's responsibility in that regard. Let us not forget that society had a responsibility as well. Society, in particular, took an interest in what was happening and allowed it to happen and walked away. It was society not only in this country but in adjoining countries as well. When we criticise others we have to look at ourselves as well and ask ourselves how that fit with society at the time. The answer to that question is simply this: society went along with it. That is what happened, and the mothers and daughters will tell us that to this day. To be fair to us all, we should recognise that that was not an easy time - not in this country. There are those who say that it happened only in this country. It did not; it happened in every country to a greater or lesser extent. Therefore, when we criticise all those who are responsible we should not exclude society, all of us.

An Ceann Comhairle

We will now hear another Kildare perspective, that of Deputy Patricia Ryan.

Deputy Patricia Ryan

Genuinely, as a daughter of a mother who was born in a county home, I find Deputy Durkan's contribution incredible, but I will move on.

An American writer, Pearl Buck, wrote "Our society must make it right and possible for old people not to fear the young or be deserted by them, for the test of a civilization is in the way that it cares for its helpless members." It is clear from this scandal that this Government is failing that test. This scandal is very much a symptom of successive uncaring governments, under which our older people have been disgracefully treated. As with housing, our health service and even the refugees we have coming in, our older people are treated as commodities from which to make profit.

Our older people need an ombudsman of their own who will stand up for their rights and represent them in respect of public policy. They were wrongfully charged for nursing home care. Up to 12,000 people with disabilities living in residential care had their disability allowance payments illegally taken from them. Under laws passed in 1970, older people who were eligible for medical cards were entitled to a place in a nursing home free of charge. Some of those people, however, were placed in private nursing homes as there were no spaces available in public facilities. They were charged for their care.

Conveniently for this Government, charging for care became legal in 2005. Documents exposed by whistleblower Shane Corr show that the Government undertook a legal strategy in order that it did not have to refund fully those affected. The Department of Health settled cases out of court and paid between 40% and 60% of these claims. The strategy saw the State resisting claims until the last possible opportunity. Many people were put off by the potential cost of vindicating their rights. That means that only those who had the finances to persist with a legal case would be able to get refunds. It also meant they never got a full refund. Thousands of vulnerable people who should have received payments were denied them due to a policy of secrecy put in place by successive governments to cover up their involvement.

This was most recently affirmed in 2017 by the Ministers, Deputies Harris and McEntee, when they were in the Department of Health. When Fianna Fáil, Fine Gael and Labour were bankrupting our country to pay billions to junior bondholders, they could not find any money for families who were wrongfully charged or people with disabilities from whom they took allowances. So much for Labour's way and not Frankfurt's, but what can we expect from a Government that removed the bereavement grant? That was yet another example of the Government putting corporate interests above the interests of workers and families and older people, and it is an absolute disgrace. Successive governments led by Fianna Fáil and Fine Gael conspired to deny our older people their entitlements. The State settled 80 legal actions over refunds for nursing home fees in a four-year period between 2013 and 2016. Forty-nine settlements were negotiated by Fine Gael Deputy Colm Burke on behalf of clients of his legal practice.

We are seeing a drip-feed of information, with new revelations every couple of days. This debate should have included a question-and-answer session but that would not have helped the Government in its efforts to cover up its shady role in this scandal. The Joint Oireachtas Committee on Health and the Committee of Public Accounts must examine the issues in detail to get to the bottom of this sordid affair.

The Government developed a legal strategy in order that it would not have to reimburse nursing home residents and their families in instances where they did not have to pay fees. Rather than putting in place a fair redress scheme to address financial hardship caused by the Government's heartless policy, as recommended by the Ombudsman in 2011, Fine Gael and Fianna Fáil continued to fight the families. The Taoiseach and senior Ministers in successive governments have questions to answer. People are angry. Does the Minister for Health want the truth? Does he want those questions to be answered?

Two weeks ago, I went to a presentation by Care Champions on nursing homes and Covid within the nursing home sector. The nursing home sector is looking for a public inquiry and I am waiting, with bated breath, for a date. I hope we get it soon.

Deputy Verona Murphy

I welcome the opportunity to speak on this matter, which is highly concerning. First, I want to commend those who have helped to bring it to light, which has allowed us to discuss it in this fashion today. What is involved here is the State bullying into submission those who could not afford the risk of high legal fees to seek justice and compensation, those who were wrongly charged but either did not have the means or the knowledge to go about seeking redress. Instead of protecting and serving them, we have politicians and officials strewn throughout this debacle trying to manipulate these people into silence and submission.

I have read the Attorney General's report a number of times but it is fair to say my concerns have not been alleviated by it. Its second paragraph states "This account has accordingly had to be prepared on the basis of documentation readily available, and within a very compressed period of time." What documentation was readily available and more importantly, what documentation exists that was not readily available to the Attorney General? In paragraph No. 9, the Attorney General states the "period of time covered by the issues of controversy addressed in this Report includes an era in which the Government’s finances were very strained". Apart from the fact that the strain on the Government's finances at the time is irrelevant, how much did it cost in legal fees to settle these cases? In paragraph No. 13, the Attorney General states "Paying for the choice by citizens to take up beds in private nursing homes was, put simply, a benefit that the State never agreed to provide for its citizens, and legislation passed by the Oireachtas in 2006 and 2009 reflected this policy choice". In his report, the Attorney General is suggesting that the cases at the heart of this issue arose out of a choice to go into private care but it is my understanding, and that of everyone involved, that some people ended up in being placed in a private nursing home because the State was unable to provide a place in a public one. A test case has not been determined or even brought before the courts.

In paragraph No.14, the Attorney General states "the irresistible logic of such a perspective is that the State has unlimited resources, must concede every Court case that is brought against it, and must fund every claim for compensation or redress that is demanded of it". This is not a typical compensation case, nor is it a typical case for redress and it should not be framed as such. It is a case where the charges were taken in a way they should not have been taken and where, at a later date, the Government was prevented by the Supreme Court from making changes retrospectively in legislation to make those charges legal. By no means is this a typical compensation or redress issue.

Paragraphs Nos. 95 to 98 highlight the fact that in 2004 the Government sought to validate the maintenance charges which health boards had imposed. The only reason the Government would seek to do so in 2004 is because those charges were previously invalid. The health boards had been acting ultra vires. This in itself is an admission that the charges should never have been taken from people in the manner in which they were. Paragraph No. 171 references the "safeguarding" of public moneys. This phrase is disingenuous and is a most disingenuous way of describing the situation. This is not typically compensation or redress and should not be framed as such. This is about moneys illegally gathered by the State that should have just been paid back. There should not have been a debate about it. The strategy is a common one, as we now know, within the mysterious workings and back streets of Government Departments, with files that are labelled secret. If this is a regularly used strategy, let us hope that others will have the bravery and wherewithal to come out, blow the whistle and shine a light on it.

Unfortunately, the Attorney General's report merely raises more questions than it answers. I will be calling for an independent inquiry to be established into this whole affair if the three months of discussions in the interim do not provide the answers. It is an extraordinary day when the Government seeks to hide behind the Statute of Limitations to deny the most vulnerable in society what is rightfully theirs. The Statute of Limitations is a bargain basement defence that should be afforded to the most marginalised in society, not one that big Government can rely on to screw poor Joe and Mary. The Attorney General's opinion may be legally correct as of today but it is morally reprehensible and one given through a rear-view mirror. Relying on the Statute of Limitations in today's realm leaves me without words.

As Fintan O'Toole put it in The Irish Times on Tuesday, the "Department of Health did not challenge those who refused to pay nursing home fees" but "hammered only those who were too poor to hire a lawyer". Most of the people affected by these charges are no longer with us but they have family members and loved ones who had to pay through the nose, in many cases, and rid themselves of assets to provide for the care of their loved ones. They deserve to be treated with dignity and respect but at the moment, the State is not treating them thus.

Deputy Michael Lowry

The recent headlines across the media in relation to historic nursing home charges have been damaging. Although the issue is years old, it is the current Government that is now tasked with allaying public anger. How that plays out now rests primarily with the two relevant Ministers that have been asked to conduct a review. Their report and proposals will be crucial to how the Government is judged on this issue. The Attorney General’s report sets out the legal facts, concluding that successive governments acted prudently but the question remains as to whether the decisions taken during that time were morally right. It is the official response to this question that will cement opinion.

While we await the response and possible proposals from the Ministers, the ongoing fight for the survival of private nursing homes remains a serious issue. Many are clinging on by their fingertips as they battle to make ends meet. Rising costs across the board forced the closure of 17 private nursing homes throughout last year, resulting in the loss of approximately 500 jobs. The disruption to families and the heartbreak caused to the elderly residents who were forced to leave the place they called home is immeasurable. Nursing home owners across Tipperary predict that national closures will significantly increase by the end of this current year. Nursing home owners are burdened with doubt and worry about the future. It is now a fact that there is no surplus profit to meet the enormous increases in day-to-day costs or to satisfy HIQA demands and compliance standards. Not only will this result in a huge gap in the availability of nursing home care, it will also make hundreds more people dependent on social welfare payments.

Last December, Nursing Homes Ireland, NHI, which represents private nursing homes, lodged a complaint with the European Commission because its members they felt their voice was not being heard by the Government. NHI alleges discrimination by the State under the fair deal scheme in the resourcing of private nursing home resident care as opposed to public nursing home resident care.

At present, public nursing homes, run and staffed by the HSE, receive 62% more per resident per week than what is available to pay for the care of an elderly person in a private nursing home. This equates to €627 per week more to provide nursing home care to a person in a public nursing home as compared with a person in a private one. It is on this basis that Nursing Homes Ireland made its case to EU competition officials.

Private nursing home owners have been asked to do the impossible for years. The rising costs for heating, lighting and food have made their hard-fought battle a lost cause. Better pay in public nursing homes means that staff, particularly essential healthcare assistants who account for half of the employees, leave the private homes if given the chance to work in public nursing homes. Few could dispute that, from a business perspective, this situation is unsustainable for private nursing home owners.

Hospital overcrowding has thrown the spotlight on the importance of nursing homes. These facilities are equipped to provide step-down, respite, rehabilitation and a continuation of care to many elderly people who no longer need to be hospitalised.

Last month a survey showed that 70% of the country's 440 private and voluntary nursing homes have capacity to facilitate discharges from hospitals. This allows for a faster turnover of hospital beds. We all hear about the problems and the difficulties we have in our acute hospitals in particular, where patients are discharged from the hospital but there is no facility available for a step down. Eighty per cent of nursing home beds are in the private sector. If increasing numbers of private nursing homes are forced to close their doors because they cannot meet costs, the pressure will remain on hospitals to provide prolonged care.

It is logical and sensible to provide the nursing home sector with sufficient funding to allow it to provide its vital service. I would ask that rather than wait for the European Commission to make a decision on the complaint that has been made, the Minister should sit with the private nursing home representatives, thrash out the issues and the concerns that they have, come to a conclusion and secure the future of private nursing homes for the people, particularly those who I represent in rural Ireland in Tipperary.

An Cathaoirleach Gníomhach (Deputy Emer Higgins)

I next move to the Government slot and call Deputy Devlin.

Deputy Cormac Devlin

I welcome the opportunity to examine the treatment of historical nursing home charges and disability allowance payments.

I might focus on the nursing home charges first. As I understand it, this issue originally arose out of the Health Act 1970, which granted people with a medical card free access to inpatient services. This was later determined to include long-stay nursing home care. However, in 1976, the then health boards withdrew medical cards for those in long-term care. This resulted in those patients and their families making contributions for long-term care between 1976 and 2004.

In 2004, the then Minister for Health and Children, Ms Mary Harney, introduced the Health (Amendment) (No. 2) Bill 2004 in an attempt to resolve the issue. However this Bill was referred to the Supreme Court. The court found patients who had been unlawfully charged for services had the right under Article 43 of the Constitution, which deals with private property, and Article 40.3.2°, which deals with the vindication of rights, to sue to recover damages. In its judgment, the court found that elements of the Bill represented an unjust attack on the property rights of individuals and therefore were repugnant to the Constitution. However, in its judgment the court only dealt with patients in public care homes. The court did not deal with medical card patients or people eligible for a medical card who could not secure a bed in a public facility and had to go to private nursing home care.

In response, the then Government introduced the Health (Repayment Scheme) Act 2006 to provide a legal basis for the repayment of long-stay charges which had been imposed on persons with full eligibility since 1976, that is, those persons who had a medical card or who were entitled to a medical card and in a public facility. The scheme entitled people in a public facility since 1998 who were still alive in December 2004 to recoup payments back to 1998, that is, within the six-year Statue of Limitations. Estates were given similar status. The HSE was also given power to reclaim funds to third-party institutions for people in their care with no families. The deadline for submitting claims under the health repayment scheme was 31 December 2007.

I understand approximately 35,000 applications were received under the health repayment scheme and almost 20,000 claimants received a repayment. This issue arose at the Committee of Public Accounts of which I am a member last week where we engaged with the HSE on this matter. A total of €486 million was paid out, with an average repayment of approximately €22,000. As I previously noted, the repayment scheme did not make provision for medical card patients, or those with eligibility who could not secure a bed in a public facility and had to go to access a private nursing home.

Individuals and their families who accessed private nursing home care during the period from 1976 to 2004, had to take legal action if they wished to press their case. I understand proceedings were issued in a number of cases. In each instance, it has been reported the case was settled at discovery stage.

We have advice from the Attorney General now that defends previous Government policy in dealing with the cases. The issue raises important questions, however, about the rights of vulnerable individuals and their families and the need for the State to protect the public purse to safeguard funds to provide important services.

I understand almost all historical cases have been settled at this stage and the health repayment scheme is close to winding down. Of course, the fair deal scheme deals with the current arrangements. We all engage with that on a regular basis.

In these circumstances, the issue is one of examining how we deal with current and future instances of citizens' access to courts and how the State vindicates the citizens' rights. Personally, I believe an ex-gratia or administrative scheme would have been fair but I recognise this issue came to a head from 2009 to 2011, a period when public funding was extremely tight. Notwithstanding this, it is important the State examines how it treats citizens and service users right across its Departments and agencies. A stand-alone inquiry is not required but it should be dealt with as part of a wider exercise.

We need to provide additional funding to the Office of the Ombudsman. On another committee of which I am a member, we deal with the Ombudsman's office on a regular basis. Some of its staff would highlight the fact that there is a need to broaden their scope somewhat. This case highlights that need clearly. We also need to overhaul civil legal aid to support citizens and service users who wish to vindicate their rights.

I appreciate the Minister's attendance here today. I note that the Minister of State, Deputy Butler, will make closing remarks.

There have been discussions and debate, both in this House and outside, over the past couple of weeks on this sensitive issue. It is one that people obviously feel strongly about.

I welcome the candid nature of the Minister, Deputy Stephen Donnelly, and the Minister of State, Deputy Butler, in terms of dealing with this issue. It is not easy looking back on historical issues, as we know in this House all too well. Nonetheless, the Minister and the Minister of State are determined to see it through and to ensure that there is a more transparent way in future for those who are in those positions. Obviously, legislation itself has changed, which is most welcome.

Deputy Matt Carthy

On 21 July 2011, the then Secretary General of the Department of Finance famously stated, "The Government of Ireland pays its debts, always has and plans to do so." Of course, he was talking about the use of billions of euro of Irish taxpayers' money being used to bail out unsecured bank bondholders, because the Government of Ireland does not always pay its debts and, certainly, not when it comes to ordinary citizens. In fact, a rule of thumb that can be ascribed to successive Fianna Fáil and Fine Gael Governments is that the more vulnerable those who are wronged are, the greater the battle they will have in securing redress.

Just eight days before the Secretary General of the Department of Finance announced that the Government "pays its debts", a secret memo was circulated to Fine Gael and Labour Party Ministers. It set out a political and legal strategy that amounted to a cover-up, denying citizens of Ireland due recourse to the recovery of moneys that were illegally taken from them. It is a familiar story and, shamefully, an all-too-familiar strategy: the treatment of Brigid McCole, who was dragged through the courts in her final months; Vicky Phelan and the other brave CervicalCheck victims, who stood up to attempts to bully them into silence; Louise O'Keefe; the thalidomide survivors; families affected by sodium valproate; and, more recently, the denial of redress to survivors of mother and baby homes. Fianna Fáil and Fine Gael Governments have continued heartless, callous and morally wrong strategies to deny the most vulnerable their rights.

Deputy David Cullinane

Hear, hear.

Deputy Matt Carthy

When a strategy comes to light years later, the new Fianna Fáil or Fine Gael Minister usually throws his or her predecessors under the bus, laments the historical practices and tells us that lessons have been learned. Not in this case, though. In this case, current members of the Government are implicated: the Tánaiste; the Taoiseach; the Minister for Justice, Deputy Harris; and the Minister without Portfolio, Deputy McEntee. Right across the current Cabinet are politicians who had a responsibility to care for and protect the most vulnerable in society but who instead implemented and stood over a cruel and callous strategy aimed at denying our elderly and citizens with disabilities what they were rightfully owed. Now we have the scandalous scenario of the Ministers, Deputies Stephen Donnelly and Humphreys, doubling down in defence of the indefensible instead of rowing back on a despicable policy.

What does this indefensible Government strategy amount to? In one stark example, we learned from the secret 2011 Government memo that residents of long-term disability homes were told by the Government that they were not eligible for the long-stay repayment scheme. Regardless, some applied for it and were swiftly denied. Most did not appeal because the HSE and the Government told them they would be unsuccessful. However, appeals were made on behalf of 515 such residents. Those appeals were successful. Eventually, the Government decided not to pursue a High Court case. The appeals officer had determined that those residents qualified for the scheme. The secret Government memo acknowledged that there had been no legal basis for them to be charged. Every single resident of such a facility was entitled to a refund, but the Government quietly refunded just the 515 who had appealed. It did not refund those who had applied but had not appealed or those who had not applied because they had been told they would not be successful. Since 2011 at the latest, every Taoiseach and Minister for Health has known that there are thousands of citizens with profound disabilities - the most vulnerable of all our citizens - who are owed money by the State and has hidden that fact from them and their advocates. Shame on each of those taoisigh and Ministers. Shame on the Ministers who came to the House today to stand over such actions. According to the Secretary General of the Department of Health, it appears that no one in government has ever even sought clarification as to how many of these residents are owed money, let alone made any effort to redress them.

Unfortunately, the Government does not pay its debts when it comes to our elderly and citizens with disabilities, who have been let down for too long. We in Sinn Féin will not let this matter drop until the principles of justice and fairness are at the heart of how the Government responds to this issue and the money taken from citizens with disabilities who were residents of so-called section 38 and 39 homes and are entitled to full refunds is rightfully handed back to them.

Deputy Mattie McGrath

The overcharging of patients in nursing homes was a violation of their rights and an abuse of the trust that many had placed in the State. It was not the first time, and I am sure it will not be the last. Thankfully, the exposing of this issue by a whistleblower, Mr. Shane Corr, has resulted in it coming to light and shown the true extent of the charges and the impact they have had on the lives of patients. But for a whistleblower, where would we be?

No matter how the Government dresses this up, the fact is that the overcharging of vulnerable patients in nursing homes between the 1970s and the 2000s was a wrong, devastating and shocking exploitation of some of the most vulnerable members of society, namely, elderly and disabled people. The issue was covered up by successive governments has only added to the hurt and anger of those affected. The system that served those governments must take some responsibility, including Secretaries General and everyone else receiving such large remunerations.

We now know that more than 300 legal cases have been taken relating to the State's handling of nursing home fees. The matter has dominated the political agenda since the Irish Mail on Sunday first reported on a secret internal Government document that detailed the strategy to minimise the cost to the State. Imagine there being such a document. This year, we will be commemorating the 100th anniversary of people who gave their lives to free our country, such as Mr. Liam Lynch in a number of week's time, yet this is how we have been treating citizens. How more callous could a system be?

I support other Deputies in their comments on the disparity between private and public nursing homes. Public nursing homes are getting more than €620 per week more to cater for each patient than a private one does. This is a significant discrimination. Private nursing homes have had to ask the European Commission for justice. They have been lobbying Irish Governments. There are many of them in my county, for example, in Carrick-on-Suir, Clonmel, Cahir, Cashel, Thurles, Templemore, Nenagh and Lorrha. They are under savage pressure due to the cost-of-living crisis and the staffing crisis, under which they are trying to retain staff. Public nursing homes can pay staff better and give them greater job security because of a discriminatory practice favoured by the Government. This is a shocking situation that must be rectified. I am sure the European Commission will find in their favour, but the Government will be dragged kicking and screaming to it again.

We know that successive governments before 2011 and up to the present devised and applied a strategy to deny refunds to people who were "illegally charged" nursing home fees. The State faced the prospect of paying €12 billion in compensation to hundreds of thousands of families wrongly charged for the care of their loved ones over a 30-year period. The central allegation in this scandal is that the Government, even knowing that it could not win in court, sought to contest the cases and only settled when people proceeded with legal actions. I would love to know what the State has been paying in legal costs. We have the experience of the late Vicky Phelan and many others who had to drag the State through the courts. We all stood up and made glowing tributes to her after she died. This is a shocking indictment of what is supposed to be a democratically accountable Government.

This controversy has stretched over 30 years. Successive governments and health bosses have been found to have failed to remedy the grounds for the illegal charges imposed on mostly older people. How many people are involved and how much will it cost? According to the document, the State's exposure could be as large as €12 billion. By 2011, up to 70,000 people were considered eligible for refunds. In the end, though, 35,000 applications were received and the State paid out €486 million on almost 20,000 cases through the health repayment scheme, HRS. This meant that approximately 15,000 applicants were refused refunds point blank. Where is the compassion, empathy and respect for elderly citizens? They are the people who built this country and gave us the life we have today. They worked hard, paid their taxes and raised their families when they did not have much and did not ask for much. Unfortunately, they would still be at home if they had been in a position to remain in their homes.

The Government has stated the issue has been "grossly misrepresented". However, this assertion is nothing more than a tactic to hide the facts and cover up the wrongs of this diabolical overcharging scandal, which had the full consent of many Ministers for Health, including the Tánaiste and the Taoiseach when they were in the Department of Health. The Taoiseach has serious questions to answer about his personal involvement as Minister for Health in the secret nursing home changing scandal, which was designed to subvert the rights of citizens to natural justice.

That is what it was. Anyone who knew about it should also be aware of that. It was designed to subvert the natural justice rights of citizens. The more than 300,000 vulnerable elderly residents directly impacted, many of whom have since passed away - Lord rest them - and their respective families who suffered extreme financial hardship because of actions of consecutive Ministers for Health must be told the truth.

The Attorney General was due to produce a report for the Cabinet this week. That report should be made public and should have been provided to all Members of the Oireachtas ahead of this debate. We did not get it. It will probably never see the light of day. We need to know if the Attorney General's report is meaningful or merely an attempt by Fianna Fáil, Fine Gael and the Green Party to remove the heat from this diabolical scandal, by kicking it onto the Attorney General for cover. Many Attorneys General have looked at this. The office and all the teams there must take some responsibility. One cannot be hiding behind the other.

Depriving those affected of their legal entitlement to full reimbursement is heartless and cruel. Failure to come clean and to deny these families the truth is abhorrent and sinister, especially as this heartless legal strategy needed the approval of the serving Minister for Health. We need to know if the current Taoiseach, Deputy Varadkar, and other serving Ministers in the current Cabinet agreed to extending this disrespectful and deceitful practice. Clearly, the Taoiseach’s explanation of his involvement in this cruel scandal is not credible. This disgusting issue has been swept under the carpet for too long. The public must be provided with transparency, openness, and accountability which we hear so much about. We have millions of euro and teams of spin doctors to get the message out and to spin. How can anyone have faith in the system that serves us when this is going on and with what is going on with the banking scandal? Who paid the piper there? The ordinary people were made to carry the can. The bondholders and junior bondholders who had insurance bonds on their lending - it was reckless lending - got off scot-free. We sided with the bankers. One of the last acts of the Minister, Deputy Donohoe, as Minister for Finance before he left to become Minister for Public Expenditure, National Development Plan Delivery and Reform was to give back bonuses to a cohort of bankers who needed it badly because they only earn €1 million or so a year.

We then have a cohort of ordinary people who we all stood and clapped for, such as nurses, people working in nursing homes and care attendants, many of whom work for agencies and who still have not received the widely acclaimed €1,000 we were to give them for dedicated service. Why are we discriminating against citizens who are care assistants and nurses in nursing homes and other private settings when we were supposed to give the payment to everyone in healthcare? Why did we announce it with such fanfare if we did not have the money to pay for it or the goodwill to honour the announcement? We make contracts with people and it is a two-way street. People give a service and they do their best. Déanann siad a ndícheall. They gave great service and now they are ringing my office and those of all Deputies every week to know when they are getting the payment they were promised. Many of them took a well-deserved break or perhaps bought something for the house on the strength of it and they are still waiting for it. Will they be waiting like the people who are waiting to get their money back? How long more will the Government keep them waiting? Will they be waiting until the cows come home? Where is the respect for these staff, these families, for people with disabilities, for the elderly and vulnerable people who the Government wrongfully charged this money and then fought through the courts? It is not apparent in this House. It has not been apparent in successive governments and it is getting worse by the week.

Deputy Joe Flaherty

At the outset I acknowledge the Minister's work and commitment to the health service. I know he is passionate about what he is trying to do and achieve. Sometimes it might feel as though he is almost a punch bag for everything that goes wrong with the delivery of the service. In that regard I have some sympathy for him.

However, the reality is that when things go wrong or even if there is a perception that things are awry there is an all consuming fear and suspicion that the State has failed society at large. As the Minister is well aware, the reality is that we have thousands of staff across the Departments of Health and of Social Protection and multiple other Government agencies who work day in, day out, with the best of intentions and are singular in their commitment to deliver first class services. There is no public or civil servant who does not strive to deliver the best for their neighbours and community. It is a deeply laudable trait and that same tenacity and commitment needs to be reflected in the State approach.

I accept the Minister has a difficult task here today but the reality is that the public at large does not have the time, inclination or energy to drill into the minutiae of the cases and certainly would feel overwhelmed by the legalese of the Attorney General's considered opinion in these matters. I accept the State and various Governments pursued a policy for 15 to 20 years, largely on the basis that it was their considered opinion that medical card holders did not have an entitlement to free private nursing home care. I also accept that a limited number of cases were settled over the course of ten years where there were complicating factors. While no case ever proceeded to a hearing, the State has said it would have defended its position and would have had bona fide defences prepared in these instances.

The key point for the Minister and for us as a Government here is that the State would have defended its position and had defences prepared. The situation of the disability allowance payments is similar where the Attorney General found that there was no positive legal duty to make retrospective payments. The phrase "positive legal duty to make retrospective payments" does not inspire and does not ooze empathy. It rings hollow, lacks empathy and while technically and legally correct, it is not the message those who are suffering and battling against multiple odds needed to hear or need to hear now nor, in many cases, what their families need to hear.

The reality is that despite the Minister's earnest and heartfelt efforts and those of the people who work in the aforementioned Departments, the public still feels that we are too adversarial and that the State instantly retrenches to a line of defence. The experience of the past two weeks and the battle scars from the medical card and disability payment debacles should teach us as a government that we must embrace empathy. We cannot, as a society or as a Government, instantly retrench to a position of safeguarding the State's interests and coffers, as laudable as that idea or notion might be in some corridors of power and financial prudence.

There is an awful lot of anger and the slightest of perceptions can trigger ire. Vested interest groups, be they opposition parties or increasingly radical elements in our society, will use this to their advantage. Regrettably it is driving a deep wedge into the heart of our country and somehow we need to take stock and find a way to allow us to simply do things better as a society and as a Government. In many instances, much like the medical cards and disability payments, it is simply a matter of communicating better, engaging with people and steadfastly abandoning what seems to be a default position of stand and fight in some Government quarters when things look wrong. We need to talk to people, we need to communicate better and we need to stop festering and fertilising deeply emotive issues that challenge the public's faith in the national agencies.

In my time in public office I increasingly find that if something was not done last year, was not done before or in the recent past, there is a deep reluctance to tackle the issue or try something different. It is almost a default position for the agencies of the State. Much of this fear on the part of staff might be due to living in an era of accountability and that is right. However, ultimately nothing should ever trump the need and requirement to do what is right for our people.

A case in point is that of Jonatan Safiak, an eleven-year-old boy from Longford town. He struggled with his health from the age of four months and his mother, Aneta, began a tireless tour of consultants and specialists to try to find out what was wrong. The most recent estimate is that they may have attended up to 40 different doctors and specialists.

The ultimate breakthrough came when the family visited Nottingham last year and met a team of specialists at the epicentre of the treatment in the UK for ataxia telangiectasia, AT, a very rare disease. In March last year we got that diagnosis. It is an extremely rare disorder which affects the nervous and immune systems and many other essential bodily functions. Unfortunately, people with the condition rarely live beyond 19 to 25 years of age, although there are some exceptions who live into their 50s. The kernel of the issue is that the condition is going to cause Jonatan and a small handful of other children who have a similar diagnosis in this country to lose their ability to walk. It will also significantly increase their chances of getting cancer during what is a very short life expectancy.

An Irish doctor is working on a groundbreaking treatment trial in Australia. While the scale and pace of the treatment for AT is somewhat more advanced in the UK, it has not as yet embraced the Australian trial. I understand a similar trial is under way in Germany, with a plant-based treatment which poses no physical threat to the patient. It is very much a case of managing the disease in these quarters, rather than curing it, because the general consensus is that there is no cure.

Unfortunately, we do not provide treatment for rare diseases very well in Ireland. I admit we are a small country, but that should not define us - and some might say it should inspire us. The reality is that teams across the world working on AT, including those in Australia, Germany or the UK, count among them many Irish people who are leading the charge in treatment of and research into this disease.

I accept that the number of children in Ireland with an AT diagnosis could be as low as five, but each case is heartbreaking and behind each case is a child and family desperately hoping against hope. We are soon to open one of the finest children's hospital in the world. It can be a beacon for child healthcare worldwide. Unfortunately, there are many other Jonatan Safiaks and those who have little known, but equally challenging, diseases and conditions.

We need to do better when it comes to treating rare diseases in this country and we need to make a much easier for families to access care and treatment outside the country. Time and again, when the country presses the empathy button nobody does empathy better. Empathy is much more than a virtue; it should define and underline how we function as a State and treat our citizens, especially those struggling with ill-health.

We also need to be more innovative in the delivery of our healthcare system at home. As we look to the opening of a new dedicated children's hospital, could we not look at an immunology-led team to take on the Australian inspired AT trial in Ireland? It would require six-week cycles in hospital for, at most, three to five children at any one time. Crucially, it could prolong their fragile life expectancy by several years.

I have the utmost and highest respect for the Minister, Deputy Donnelly, and I believe there is no one more passionate or wholehearted in this country at the present time about delivering a better health service that befits us as a modern, progressive and compassionate nation. We need to stop being so adversarial and take better care of the Jonatans of this world. I ask the Minister to take a personal interest in Jonatan's case in the hope that we somehow can provide his parents and siblings with a torch to guide them through what seems to be a very tense and never-ending fog.

Deputy Joan Collins

This is a moral and political issue, namely, whether we provide for our elderly and pay what people are owed or drag them through prolonged legal battles to cut costs. The fact remains that thousands of people who were entitled to State care were denied it. This was covered up, and when it came out successive governments, led by Fianna Fáil, Fine Gael, the Green Party and the Labour Party, did everything possible to make sure those people got nothing back.

The Attorney General's report may be a useful political tool to hide behind, but it does not take away from the facts. The Government did not break the law; rather, it fought tooth and nail to stop redress for thousands of people who were saddled with massive costs they should never have had to pay.

The Taoiseach spoke with a forked tongue in the Dáil yesterday about how it takes two sides to agree to settle in an attempt to portray this as a level playing field. We know that is not the case. We know from the documents released by Shane Corr that the State was looking for a strong test case it could win in court in order to try to put all of this to bed.

The State's legal team waited up to the point of disclosure and weighed up the case before offering an out-of-court settlement. It knew exactly what it was doing. How could ordinary people feel they could face up to a State legal power when faced with strategies like this? How many mother and baby home survivors, people who suffered abuse in church or State care, people denied care in their old age, those with a disability or autistic children fighting for school places and assessments of needs have faced the same tactics?

I have a letter from Age Action which rightly calls for the release of all similar policies currently in use by the Government. In one week we have learned about a secret legal strategy regarding nursing homes and another regarding disability payments. How many more are there?

Deputy Marian Harkin

It must be difficult for the Minister of State, Deputy Butler, to sit here and defend a policy strategy that at the time made every effort to take away or minimise the eligibility of people for the nursing home subvention scheme. Those people, and some with disabilities, were denied their rights. That is what we are talking about.

We have all heard about the Ombudsman's report and we know what its findings say. The 2010 report recommended significant repayment of moneys to those who were forced by the State to overpay. However, the State aggressively and consistently defended its stance, taking people to court.

When it became clear that the claimants were likely to succeed, the State settled before discovery. Why did it do so? It did so because discovery would have meant other individuals and families who were also denied their rights would have been made aware of the situation and were likely to take cases.

I have often described the State as a juggernaut when it comes to defending its position. Not everybody who takes the State to court is right. Indeed, the State has a duty to defend the public purse. However, this case and many others I have seen show a State policy that bends before the powerful and those with wealth, influence and clout, like the banks or the church, while steamrolling the individual, the voiceless, those without connections and power and, in this case, those in nursing homes or their families and people with disabilities.

I have looked at the Attorney General's report, which speaks of scarce resources and hard choices. Resources were scarce, but it is the job of Government to ensure that scarce resources are distributed fairly to all its citizens. We have heard about hard choices, but the Government took the easy choice, namely, the line of least resistance to take money illegally from certain people and then defend that practice with the full weight of the State in courts.

People sometimes use the term "making hard choices" as if it is somehow a noble and upright thing to do. The State made the easy choice. It was a hard choice for those who are disadvantaged. I hope the Minister of State and her colleagues will reflect on this matter carefully and try to rebalance the rights of individuals and families with managing the public purse. It cannot be easy to sit here, but the case is not yet closed. I am not asking Government to make hard choices or easy choices; rather, I am asking it to make good choices.

Deputy Catherine Connolly

I have less than two and a half minutes. I will not take a breath and will stay focused. I have never read a more self-serving report that serves the narrative that has already been determined by the Government, namely, that it did nothing and naughty people came forward to look for benefits that they did not deserve and were not based on legislation. Not alone is it done that way, it is also done in a way that is divisive because it asks whether younger people should now be paying for the past. It is also demeaning because it refers to people coming forward and looking for gratuitous nursing home beds.

It is also very misleading and disingenuous because it does not deal with the strategy that was based on the fundamental question of whether people were entitled to nursing home care under section 52 of the existing legislation of 1970. It completely ignores the background to all of this, namely, almost 50 years of complaints encompassing three Ombudsmen from 1985. It was inundated with complaints on both sides, including the private nursing homes, where people had no choice but to go. This Attorney General tells us they had a choice. He does not even look at how they were forced into it. The Ombudsman told us the position is confused and that the key legal point is whether people have an enforceable right to be provided by the HSE. That goes on to tell us there is confusion and uncertainty, which is a hallmark not of the law but of what the Department, Ministers and governments thought the law was saying because it suited them.

We get this report, which is nothing short of shocking. What it does is expose the fact the Attorney General is simply there to advise the Government and has no role in terms of the public interest. He has the cheek to equate the public interest with his analysis of a difficult financial situation and not even highlight the gap that is there, namely, the fact there is nobody there to represent the public interest. In his report, he refers to the Health (Miscellaneous Provisions) Act 2014. The Minister for Health might help me there because neither I nor my office could find that Act anywhere.

I will stop precisely on time even though I would like to say a lot more. I hope this is the start of a debate on the public interest role of the Attorney General or someone else.

Deputy Thomas Pringle

Unlike my colleague, I do not think this will be the start of the debate. I would say the Government is hoping it will be the end of it.

According to a 2011 Department of Health report, up to 250,000 nursing home residents with medical cards were incorrectly charged for public nursing home care since 1976, yet the Attorney General’s report into the nursing home fees finds that the Government acted prudently and in the taxpayer’s interests. The report also finds that there is no positive legal duty to return proactively the disability allowance that was illegally taken from 12,000 recipients.

We see yet another example of this State taking advantage of the most vulnerable in our society and then refusing to give the appropriate redress, if any, when caught out. The Attorney General’s report suggests that not only is it acceptable to take money from the most vulnerable in society but the State is then somehow not legally required to give it back when it is caught out. Unfortunately, it would not be true to say I am surprised at the Attorney General’s findings. I will say, however, that I am extremely disappointed. The report takes an incredibly narrow view and I would question the view the Attorney General has decided to take on this.

We also need to question the role of the Attorney General, an unelected official with unchallenged power across all Departments and often the final say on incredibly significant issues such as this. It is concerning to me that we do not question this role more given the weight and power of his decisions, but then Ministers need something to hide behind when they make a decision, which is why we do not question it.

The Attorney General's report states that the public interest, including protecting the taxpayer, was the only interest of the State and that questions of intergenerational fairness also arise in circumstances where any redress must be funded from the taxes of a younger generation of workers. This completely ignores the fact that younger generations have also suffered from this in trying to fund their parents' or grandparents' care and it also calls into question the Attorney General’s idea of fairness. Is fairness taking advantage of the vulnerable in our society and then calling this a legally sound decision? It seems the Attorney General and, therefore, this Government thinks so.